On 22nd December 2020, a Single Judge Bench consisting of Hon’ble Mr Justice Ashutosh J. Shastri heard the case of Nitin @ Chaddo Amrutbhai v. State of Gujarat via video conferencing.
Brief Facts of the Case
The petition was filed against the order of detention passed by the Respondent i.e., the detaining authority in the exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 by detaining the Petitioner- Detenue as defined under Section 2(c) of the Act.
Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 reads as follows: “Power to make orders detaining certain persons- If having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate or the Commissioner of Police, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.”
Contentions of the Petitioner
Learned counsel for the Detenue submitted that the Order of detention in the petition deserved to be quashed and set aside on the ground of registration of offences under Sections 324 (Voluntarily causing hurt by dangerous weapons or means), 323 (Punishment for voluntarily causing hurt), 294(B) (Obscene acts and songs), 506(2) (Punishment for criminal intimidation), 337 (Causing hurt by act endangering life or personal safety of others), 452 (House-trespass after preparation for hurt, assault or wrongful restraint), 427 (Mischief causing damage to the amount of fifty rupees) and 114 (Abettor present when an offence is committed) of the IPC and Section 135 of the Gujarat Prevention of Anit-Social Activities Act, which by itself could not bring the case of the detenue within the purview of the definition under Section 2(c) of the Act.
Further, the Counsel for the Detenue submitted that the commission of illegal activity would not have any nexus with the maintenance of public order, but it could result in the breach of law and order.
Contentions of the Respondent
The Learned Counsel for the Respondent favoured the detention Order passed by the authority and submitted that adequate evidence was found during the investigation, which was also supplied to the Detenue, indicating that the Detenue had the habit of indulging into the activity as defined under Section 2(c) of the Act and the detaining authority had rightly passed the Order of detention.
The Court opined that the offences alleged did not have any nexus with the public order as required under the Act. Further, until and unless the person posed a threat to the society and disturbed the whole “tempo of society”, it could not be said that the Detenue was a person in the context of Section 2(c) of the Act.
The Court referred to the case of Pushker Mukherjee v. State of West Bengal [AIR 1970 SC 852], which gave a clear distinction between ‘law and order’ and ‘public order’:
“A mere disturbance of law and order leading to disorder is not sufficient for action under the Preventive Detention Act but a disturbance which affects public order is within the scope of the Act.”
The Court also referred to the case of Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.N. and others, AIR 2003 SC 971, which held that the disorderly conduct of an individual in public could affect the peace in the locality, however, the same need not necessarily affect the maintenance of public order.
The Court referred to the case of Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, where it was observed that to determine whether the disturbance amounted to only a breach of law and order, the degree of disturbance and its effect on the community must be measured.
The Court held that the Detaining Authority had failed to establish that the antisocial activities of the detenue adversely affected the maintenance of public order. Further, there was no link between the offence committed and the passing of the Detention Order.
The Court also held that mere registration of FIR could not have any nexus with the breach of maintenance of public order and the authority could not have recourse under the Act. Thus, the petition was allowed by the Court.
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