Human beings are supreme, and their freedom cannot be limited unless their detention is absolutely necessary and their actions have an impact on “public order.” : Gujarat high court
TITLE: Asalam through Arshad Versus State of Gujarat
Decided On-: August 17, 2023
. 12790 of 2023
CORAM: Hon’ble Justice Mr. A.S .Supehia and Mr. M.R Mengdey
INTRODUCTION-
The current petition is intended to challenge the detention order issued by the respondent-detaining authority in accordance with the authority granted under section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 The petitioner-detenu was detained in accordance with the terms set forth in section 2(c) of the Act..
FACTS OF THE CASE
Detenu argued that the impugned order of detention of the detenu needs to be quashed and overturned because the detaining authority issued the order solely based on the filing of two separate FIRs for violations of Sections 379 of the Penal Code, 1860, which by itself is insufficient to bring the detenu’s case within the ambit of the definition under section 2(c) of the Act. A knowledgeable attorney for the petitioner further argued that any illegal activity that is likely to be carried out or alleged to have been carried out as alleged cannot be connected to or have anything to do with maintaining public order; at most, it can be considered a violation of law and order. In addition, other than witness statements and the filing of the aforementioned FIRs, there is no other pertinent or convincing evidence linking the alleged anti-social behaviour of the detainee to a breach of public order. The eminent advocate further argued that it was impossible to conclude from the facts of the case that the detenu’s involvement in criminal cases had affected and disrupted society’s social fabric, eventually posing a threat to the very survival of people’s normal and routine lives, or that the detenu had thrown the entire social system into disarray by registering criminal cases. Bail was granted in all offences.
COURT ANALYSIS AND DECISION
The learned AGP for the respondent-State supported the detention order issued by the authority and argued that enough information and evidence discovered during the course of the investigation and provided to the detainee indicate that the detainee is habitually engaging in the activity as defined under Section 2(c) of the Act. Taking these facts into account, the learned AGP for the respondent-State argued that the detention order issued by the authority and detention order.
The subjective satisfaction reached by the detaining authority cannot be said to be legal, valid, or in accordance with law, prima facie, because the offences alleged in the FIR/s cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to address the situation. Considering learned advocates for the parties and the documents and material available on record of the case, it is found that the detaining authority’s subjective satisfaction cannot be said to be legal, valid
In those circumstances, it cannot be said that the detainee is a person who would fall within the meaning of section 2(c) of the Act 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 goes in peril disturbing public order at the instance of such person. There is nothing in the record, aside from general statements, that indicates the detainee is acting in a way that could endanger the peace of the community.
As a result, the Division Bench has ruled that independent steps must be taken to consider general background, character, antecedents, criminal tendency, etc. while recording subjective satisfaction, in addition to relying on the evidence provided by the sponsoring authority, when verifying the statements of the witnesses and when evaluating the question of exercising the privilege under Section 9(2) of the PASA Act.
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Written by- Steffi Desousa