Guj HC restrains state from passing detention orders under PASA

PASA Image Courtesy:livelaw.in

On August 18, Gujarat High Court restricted the state government from issuing detention orders under the Prevention of Anti-social Activities (PASA) Act against three traders booked for some offences under the GST laws.

The Bench of Justice Paresh Upadhyay had asked the state at which stage can the detention order be passed? However, in the absence of response from the state and uncertain statements of the tax department, the court called it a “hanging sword” over the traders. The court said that in such cases, the state cannot be permitted to resort to PASA, especially when the state is trying to regain momentum post Covid-19.

The petitioners, Amitkumar Patel, Sanjay Patel and Sanjaykumar @ Shankar Patel were apprehending detention under PASA in connection with the complaint filed by the State Tax Department before the Magistrate court, Ahmedabad. The complaint was filed under Gujarat Goods and Services Tax Act and Central Goods and Services Tax Act as well as offence of criminal conspiracy under IPC.

At the previous hearing, the court had granted protection to the petitioners in case a detention order under PASA is issued against them. The court had also sought to know from the state at what stage could the detention order be passed and whether in cases of discrepancies in GST, the “sword” of detention under PASA should be kept hanging over the head of the trader community. The Finance Department did not respond, however the Gujarat Goods and Services Tax Department filed an affidavit stating that no proposal is made to detain the petitioners under PASA, thus far.

The court observed that since the Finance Department had not responded to the court’s query, the sword is hanging over the traders of detention under PASA because the tax department has said that “so far” no decision has been made.

“Citizen can not be left in lurch like this. Further, when the State on the whole and the economy in particular is trying to regain the momentum post COVID, such hanging sword situation cannot be permitted to continue,” the court said.

The court, after considering material on record, held that in such cases the State Authorities can not be permitted to resort to the stringent provisions like detention under PASA and the court has restrained the state from issuing detention order against the petitioners and disposed the petitions.

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.

Detentions under PASA

In April 2019, Times of India reported that since the announcement of general elections in 2019, over a period of 31 days, 228 persons were detained under PASA while 48 were externed from city limits. The then Additional Commissioner of Police, Special Branch, Premvir Singh said that 49,423 persons have been detained and 6,866 arrest warrants issued. It is unclear to what period these numbers pertained. There is also every chance that the government of the day, indiscriminately uses the process of a problematic, draconian law to target protesters and political opponents. Due process, fundamental to restore balance in an unequal relationship between state and citizen has been given a complete go by here.

The high court order may be read here: