TITLE: Amin Alauddin Shaikh through his Mather in Law Mumtazbi Ibrahimkhan Pathan
Versus State of Gujarat
Decided On-: August 19, 2023
12618 of 2023
CORAM: Hon’ble Justice Mr. A.S Supehia & Mr. M.R Mengdey
INTRODUCTION-
The current petition is intended to challenge the detention order issued by the respondent – the detaining authority – while acting within the scope of the Gujarat Prevention of Anti-Social Activities Act, 1985, section 3(1), by holding the petitioner-detenu, as that term is defined in section 2(c) of the Act.
FACTS OF THE CASE
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 accustomed to engaging in the activity as defined in Section 2(c) of the Act. Taking into account the circumstances of the case, the detaining authority passed the order of detention in a proper manner, and the detention order deserves to be upheld.
The detenu claimed that the impugned order of detention of the detenu needed to be quashed and overturned because the detaining authority had made the decision to detain the detenu solely on the basis of the registration of two FIRs, which is insufficient to bring the detenu’s case within the meaning of section 2(c) of the Act. A knowledgeable attorney for the petitioner further argued that any illegal activity that is likely to be committed or is alleged to have been committed 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.
COURT ANALYSIS AND DECISION
In such instances, 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.
It appears that the state authorities frequently disregard the aforementioned settled principle of law and pass orders without realising that human freedom is unalienable and cannot be curtailed or restricted unless the detention is absolutely necessary and the activities of the detainees have an adverse impact on “public order.” court at hand has also observed that the state authorities completely misunderstand the difference between “law and order” and “public order.” The Supreme Court and the High Court have reiterated and clarified the distinction between the two expressions in numerous decisions, but it is apparent from the orders of detention that the detaining authorities are not paying attention to this crucial aspect. If not needed in any other situation, the detainee is to be released immediately. The rule is thus made unambiguously absolute.
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Written by- Steffi Desousa
