C/SCA/19009/2023 JUDGMENT DATED: 30/04/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19009 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DINESH JADAV S/O MOTIBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
VIJAY U GOSWAMI(7927) for the Petitioner(s) No. 1
MR ROHAN RAVAL, AGP for the Respondent(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 3
RULE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 30/04/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
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1. This petition under Article 226 of the Constitution of
India is filed for following relief:-
“A. xxx
B That this Hon’ble Court be pleased to quash and
set aside the detention order No.N.D.P.S. CELL
/PT / NDPS Act Detain/Confidential-17-B/2023
dated 03.06.2023 passed by the respondent NO.2
herein which is at Annexure-’A’ by way of issuing
appropriate writ, order or direction in the interest
of justice.”
C to F xxx”
2. Thus, essentially, the challenge is to the order of
detention dated 03.06.2023 (executed on 10.10.2023) passed by
the Additional Director General of Police, CID Crimes & Railways,
Gujarat State, respondent No.2 herein, by which the petitioner has
been detained as a “drug offender” based on three offences
registered against him, details of which are as under:-
Sr. Name of Police Station CR No. and date Sections Date of bail
No. order
1 NCB, Ahmedabad 11 of 2019 dated 8(C), 21(C) 27.02.2020
22.11.2019 and 29 of the
NDPS Act
2 Kagdapithg Police 11191025200109 of 8(C), 21(C) 06.07.2020
Station 2020 dated and 29 of the
01.02.2020 NDPS Act
3 Kerala GIDC Police 11192006220163 of 8(C), 21(C) 12.01.2023
Station, Ahmedabad 2022 dated and 29 of the
(Rural) 30.10.2022 NDPS Act
3. Learned advocate for the detenue submits that the
order of detention impugned in this petition deserves to be quashed
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and set aside as registration of the offences under Sections of
NDPS Act by itself cannot bring the case of the detenue within the
purview of definition under section 2(f) of the Act. Further, learned
advocate for the detenue submits that illegal activity likely to be
carried out or alleged to have been carried out, as alleged, cannot
have any nexus or bearing with the maintenance of public order
and at the most, it can be said to be breach of law and order.
Further, except statement of witnesses, registration of above FIR/s
and Panchnama drawn in pursuance of the investigation, no other
relevant and cogent material is on record connecting alleged anti-
social activity of the detenue with breach of public order. Learned
advocate for the petitioner further submits that it is not possible to
hold on the basis of the facts of the present case that activity of the
detenue with respect to the criminal cases had affected even tempo
of the society causing threat to the very existence of normal and
routine life of people at large or that on the basis of criminal cases,
the detenue had put the entire social apparatus in disorder, making
it difficult for whole system to exist as a system governed by rule of
law by disturbing public order.
3.1 It is submitted that the petitioner was in fact not named
in the FIRs and was not present at the scene of offence. However,
later on came to be arraigned on the basis of statement of co-
accused.
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3.2 It is submitted that there is also a delay of
appropriately 5 months in passing the order of detention after the
petitioner was enlarged on regular bail in the third offence on
12.01.2023.
4. As against this, learned AGP for the respondent State
supported the detention order passed by the authority and
submitted that sufficient material and evidence was found during
the course of investigation, which was also supplied to the detenue
indicate that detenue is in habit of indulging into the activity as
defined under section 2(f) of the Act and considering the facts of
the case, the detaining authority has rightly passed the order of
detention and detention order deserves to be upheld by this Court.
Reference to the same is made by the detaining authority in the
very order of detention where the detaining authority has referred
to the fact that it was the petitioner who had himself confessed to
commission of offences. Not only that, there are other supporting
evidences also which the detaining authority has taken into
consideration like drawing of panchnama, etc. The three FIRs
registered against the petitioner are attracting the ingredients of
“drug offender”.
5. Having heard learned advocates for the parties and
considering the facts and circumstances of the case, it appears that
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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 as required under the Act and other
relevant penal laws are sufficient enough to take care of the
situation and that the allegations as have been levelled against the
detenue cannot be said to be germane for the purpose of bringing
the detenue 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 is in peril
disturbing public order at the instance of such person, it cannot be
said that the detenue is a person within the meaning of section 2(c)
of the Act. Except general statements, there is no material on
record which shows that the detenue is acting in such a manner,
which is dangerous to the public order. In this connection, it will
be fruitful to refer to a decision of the Supreme Court in Pushker
Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], where
the distinction between 'law and order' and 'public order' has been
clearly laid down. The Court observed as follows :
“Does the expression "public order" take in every kind
of infraction of order or only some categories thereof ?
It is manifest that every act of assault or injury to
specific persons does not lead to public disorder. When
two people quarrel and fight and assault each other
inside a house or in a street, it may be said that there is
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disorder but not public disorder. Such cases are dealt
with under the powers vested in the executive
authorities under the provisions of ordinary criminal
law but the culprits cannot be detained on the ground
that they were disturbing public order. The
contravention of any law always affects order but
before it can be said to affect public order, it must
affect the community or the public at large. In this
connection we must draw a line of demarcation
between serious and aggravated forms of disorder
which directly affect the community or injure the public
interest and the relatively minor breaches of peace of a
purely local significance which primarily injure specific
individuals and only in a secondary sense public
interest. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action
under the Preventive Detention Act but a disturbance
which will affect public order comes within the scope of
the Act.”
6. The petitioner has been enlarged on bail and therefore,
ordinary law is sufficient to prevent the petitioner from indulging in
further offence, particularly when the petitioner has been granted
bail in connection with three offences on which the detaining
authority has relied upon to arrive at a subjective satisfaction. At
the same time, the detaining authority has not taken into
consideration restoring to the procedure for cancellation of bail.
7. The Court has also taken into consideration the fact
that the petitioner has been enlarged on regular bail by the Court
of competent jurisdiction and the detention order does not reflect
application of mind to the fact that the Detaining Authority has
considered cancellation of bail to be ineffective method to curtail
activities of the petitioner. Therefore, in the opinion of the Court,
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the Detaining Authority not having taken into consideration the
cancellation of bail option. The subjective satisfaction would stand
vitiated as is held in recent decision of the Hon’ble Supreme Court
in the case of Shaik Nazeen v/s. State of Telanga and Ors.
reported in 2023 (9) SCC 633, the Hon’ble Supreme Court has
made following observations in para 19 as under:-
“19. In any case, the State is not without a remedy, as
in case the detenue is much a menace to the society as
is being alleged, then the prosecution should seek for
the cancellation of his bail and/or move an appeal to the
Higher Court. But definitely seeking shelter under the
preventive detention law is not the proper remedy
under the facts and circumstances of the case.”
8. The Court also finds that there is delay of
approximately five months in passing the order of detention after
bail was granted to the petitioner in third offence on 12.01.2023
and the order of detention came to be passed on 03.06.2023 and
executed on 10.10.2023. The Apex Court in the case of Sushanta
Kumar Banik Vs. State of Tripura, reported in AIR 2022 SC
4715 has observed as under:-
“11. We are persuaded to allow this appeal on the
following two grounds:
(i) Delay in passing the order of detention from the date
of proposal thereby snapping the "live and proximate
link" between the prejudicial activities and the purpose
of detention & failure on the part of the detaining
authority in explaining such delay in any manner.
(ii) The detaining authority remained oblivious of the
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fact that in both the criminal cases relied upon by the
detaining authority for the purpose of passing the order
of detention, the appellant detenu was ordered to be
released on bail by the special court. The detaining
authority remained oblivious as this material and vital
fact of the appellant detenu being released on bail in
both the cases was suppressed or rather not brought to
the notice of the detaining authority by the sponsoring
authority at the time of forwarding the proposal to pass
the appropriate order of preventive detention.
DELAY IN PASSING THE ORDER OF DETENTION
12. We may recapitulate the necessary facts which have
a bearing so far as the issue of delay is concerned. The
proposal to take steps to preventively detain the
appellant at the end of the Superintendent of Police
addressed to the Superintendent of Police (C/S) West
Tripura, Agartala is dated 28th of June 2021. The
proposal in turn forwarded by the Assistant Inspector
General of Police (Crime) on behalf of the Director
General to the Secretary, Home Department is dated
14.07.2021. The order of detention is dated 12th of
November, 2021. There is no explanation worth the
name why it took almost five months for the detaining
authority to pass the order of preventive detention.
13. There is indeed a plethora of authorities explaining
the purpose and the avowed object of preventive
detention in express and explicit language. We think
that all those decisions of this Court on this aspect need
not be recapitulated and recited. But it would suffice to
refer to the decision of this Court in Ashok Kumar v.
Delhi Administration and Ors., (1982) 2 SCC 403 ,
wherein the following observation is made:
"Preventive detention is devised to afford protection to
society. The object is not to punish a man for having
done something but to intercept before he does it and
to prevent him from doing."
14. In view of the above object of the preventive
detention, it becomes very imperative on the part of the
detaining authority as well as the executing authorities
to remain vigilant and keep their eyes skinned but not
to turn a blind eye in passing the detention order at the
earliest from the date of the proposal and executing the
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detention order because any indifferent attitude on the
part of the detaining authority or executing authority
would defeat the very purpose of the preventive action
and turn the detention order as a dead letter and
frustrate the entire proceedings.
15. The adverse effect of delay in arresting a detenu
has been examined by this Court in a series of decisions
and this Court has laid down the rule in clear terms
that an unreasonable and unexplained delay in securing
a detenu and detaining him vitiates the detention order.
In the decisions we shall refer hereinafter, there was a
delay in arresting the detenu after the date of passing
of the order of detention. However, the same principles
would apply even in the case of delay in passing the
order of detention from the date of the proposal. The
common underlying principle in both situations would
be the "live & proximate link" between the grounds of
detention & the avowed purpose of detention.
xxxxx
20. It is manifestly clear from a conspectus of the above
decisions of this Court, that the underlying principle is
that if there is unreasonable delay between the date of
the order of detention & actual arrest of the detenu and
in the same manner from the date of the proposal and
passing of the order of detention, such delay unless
satisfactorily explained throws a considerable doubt on
the genuineness of the requisite subjective satisfaction
of the detaining authority in passing the detention
order and consequently render the detention order bad
and invalid because the "live and proximate link"
between the grounds of detention and the purpose of
detention is snapped in arresting the detenu. A
question whether the delay is unreasonable and stands
unexplained depends on the facts and circumstances of
each case.
21. In the present case, the circumstances indicate that
the detaining authority after the receipt of the proposal
from the sponsoring authority was indifferent in
passing the order of detention with greater
promptitude. The "live and proximate link" between the
grounds of detention and the purpose of detention
stood snapped in arresting the detenu. More
importantly the delay has not been explained in any
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manner & though this point of delay was specifically
raised & argued before the High Court as evident from
Para 14 of the impugned judgment yet the High Court
has not recorded any finding on the same.”
9. In the facts of the present case also, there is no live and
proximate link between the three offences mentioned in the
grounds. The first offence was registered on 22.11.2019, second
on 01.02.2020 and third on 30.10.2022.
10. No need to say when a citizen is deprived of his
personal liberty by keeping him behind the bar under the
provisions of the PASA law without trial by the competent court,
the detaining authority is required under the law to justify its
action and in absence of reply/counter affidavit, the averments
made in the petition remain unchallenged and uncontroverted.
11. In view of above, we are inclined to allow this petition,
because simplicitor registration of FIR/s by itself cannot have any
nexus with the breach of maintenance of public order and the
authority cannot have recourse under the Act and no other relevant
and cogent material exists for invoking power under section 3(2) of
the Act.
12. In the result, the present petition is hereby allowed and
the impugned order of detention dated 03.06.2023 (executed on
10.10.2023) passed by the respondent–detaining authority is
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hereby quashed and set aside. The detenue is ordered to be set at
liberty forthwith if not required in any other case. Rule is made
absolute accordingly.
Direct service is permitted.
Sd/-
(A.Y. KOGJE, J)
Sd/-
(SAMIR J. DAVE,J)
SHITOLE
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