The Gujarat High Court quashed the detention order of a person booked under the Prohibition Act, while observing that a solitary offence cannot deem a person to be bootlegger under the Prevention of Anti-social Activities Act (PASA). The bench of Chief Justice Vikram Nath and Justice Biren Vaishnav said, “Just because a solitary offence has been registered against the appellant-detenu under the Gujarat Prohibition Act, that by itself, does not have any bearing on the maintenance of public order”.
The letters patent appeal was filed against the order passed by single judge bench whereby the writ petition challenging the order of preventive detention was dismissed. The appellant, Karansinh Vaghela was detained basis detention order dated April 6, 2021 basis FIR registered against him under some sections of Gujarat Prohibition Act.
The contentions raised before the single-judge bench included the detenue not falling under the definition of “bootlegger” under section 2(b) PASA. Other contentions raised were that there was no breach of law and order much less public order and that there were no past antecedents against the detenue.
Bootlegger is defined under PASA as:
(b) “bootlegger” means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing;
The government pleader, Shruti Pathak, opposed the appeal and submitted that the powers conferred on the detaining authority and the procedural safeguards are not devised to allow persons to continue with criminal activities and take advantage of technical loopholes. She submitted that the order passed by the detaining authority as confirmed by the Single-Judge deserves no interference.
The court considered the facts and circumstances of the case as well as the grounds on which the detention order was passed. The court said that it was loathe in interfering with the subjective satisfaction of the detaining authority however, considering the aspects of disturbance of public order, past antecedents of crime as well as definition of “bootlegger” under PASA, the court held that the appellant cannot be said to be a bootlegger, when the offence is solitary.
The court said, “In the absence of material about disturbance to public order, we find that no compelling circumstance was available with the detaining authority to exercise power of preventive detention and the overall facts do not reveal that preventive detention of the detenue was warranted”.
The court cited Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police (in L.P.A. No.2732 of 2010 dated March 28, 2011) wherein the decision of Supreme Court in Pushker Mukherjee vs. State of West Bengal AIR 1970 SC 852 was quoted. The apex court had drawn a distinction between public order and law and 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,” the apex court had held.
The court, in this case, observed that the law of preventive detention has to be construed not as in an ordinary criminal proceedings of detaining or arresting a person who is said to have committed crime. Instead, the law of preventive detention is to be strictly followed as per the statute and the settled law on the point. The court observed that there is only a single FIR related to prohibition offences and “by no stretch of imagination can we hold that such incidents could describe a person as a bootlegger,” the court said.
The court held that the detaining authority failed to substantiate that the alleged antisocial activities of the appellant-detenu adversely affect or are likely to affect adversely the maintenance of public order.
“Just because a solitary offence has been registered against the appellant-detenu under the Gujarat Prohibition Act, that by itself, does not have any bearing on the maintenance of public order. The order of detention, therefore, cannot be sustained and deserve to be quashed and set aside,” the court said.
The court thus, quashed the judgement passed by the single judge bench as well as the detention order and directed the appellant to be released forthwith.
On August 18, Gujarat High Court Bench of Justice Paresh Upadhyay restricted the state government from issuing detention orders under PASA against three traders booked for some offences under the GST laws.
Misuse of PASA
This is not the first time, the Gujarat High Court has pointed towards the indiscriminate misuse of PASA against people. In early April the bench of Justice Upadhyay had preemptively stalled the execution of detention order, and observed that it was a private dispute between the parties but the police had still filed the FIR and deemed the petitioner to be a ‘dangerous person’ under PASA and intended to detain him. The court observed, “Such tactics need to be nipped in the bud. Rampant misuse of PASA is noticed by this court. This is one of such examples, where it is the police authorities who take upon such responsibility to settle the financial transaction / disputes between the parties, with the aid / threat of PASA.”
The Gujarat High Court has time and again warned the state’s police and the detaining authority against the pertinent misuse of this law in force for over three and a half decades. In several cases one pattern of misuse and continued detention through this law was by the time-tested method of multiple FIRs registered against a person; even if some of these FIRs dated from several years ago. In one case it was found that the several allegations on which the man was detained were all false and despite the Police themselves attesting to this in a report, he was still detained!
The complete analysis of how PASA has been misused with the high court pointing out the same, may be read here.
The high court order may be read here: