On March 21, 2022, the Gujarat High Court quashed the detention of one Mr.Dilip Yadav who was detained under section 3(2) of the Gujarat Prevention of Anti-Social Activities Act (PASA), 1985.

This is not the first time that the Court has ruled against the draconian statute. 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 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 had been detained and 6,866 arrest warrants issued.

In today’s landmark judgement, the High Court allowed the petition and set aside the impugned order of detention passed by the detaining authority.

Petitioner’s argument

The Petitioner submitted that registration of the solitary offence/s under Sections 65-AE, 116-B 98(2) and 81 of the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) of the Act.

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.

No other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order.

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

Respondent’s arguments

Sufficient material and evidence were 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(b) of the Act.

Gujarat High Court’s Judgement

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(b) of the Act.

As argued by the Petitioner, the Court states that 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.

The judgement cites the decision of the Supreme Court in Pushker Mukherjee v/s State of West Bengal [AIR 1970 SC 852] which clearly lays down the distinction between ‘law and order’ and ‘public order’:

“When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder….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….. 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.”

The judgement may be read here:

Some key provisions of PASA:

The law came into force in 1985. The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.

A “cruel person” means a person, who either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.

A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.

Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”.  Again, public order is widely and vaguely outlined or defined: the explanation to this tern within the law n describes public order being affected if any activities of the offenders is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof, or if (there is) a grave or widespread danger to fife, property or public health.

The amendment

The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA. Further it also included money lending offences, which included persons engaged by money lenders who threatens or do use force to collect money from people. It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code.

The offences that are being covered under PASA are already offences under some law or the other which means there are already punishments prescribed for these offences but the wider scope of PASA would mean the Police is empowered to practically detain anyone on suspicion of committing of these wide range of offences without due process.

Related:

Gujarat’s PASA Act: A long running saga of misuse and abuse
Guj HC restrains state from passing detention orders under PASA
Cannot be deemed bootlegger and detained under PASA based on one FIR: Guj HC
Guj HC warns Police of misuse of PASA to settle private disputes

The post Gujarat HC rules on PASA Act, claims Preventive Detention untenable appeared first on SabrangIndia.

The court was dealing with four applications filed against orders passed by District Magistrate Amreli whereby the petitioners were treated as ‘property grabbers’ and were detained under PASA. Since these were identical orders, the court heard them together and passed a common order.

Property grabber is defined under section 2(h):

(h) “property grabber” means a person who illegally takes possession of any lands not belonging to himself but belonging to Government, local authority or any other person or enters into or creates illegal tenancies or leave and licence agreements or any other agreements in respect of such lands or who constructs unauthorised structures thereon for sale or hire or gives such lands to any person on rental or leave and licence basis for construction or use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession of such lands or for construction of unauthorised structures thereon or who collects or attempts to collect from any occupiers of suchlands rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupiers by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things;

The execution of the impugned orders was suspended by the high court in March 2021 and the petitioners were directed to be released.

The court quoted parts of the affidavit filed by the detaining authority and the court also observed that the affidavit does not provide any justification to invoke PASA in a private property dispute. In the affidavit, the reason for detaining the petitioners was that if they would have been granted regular bail and set free, then they would tamper records and act against maintenance of public order and continue their illegal activities. It further stated that if they were not detained, they would have taken help of their advocates for continuing illegal activities and state could file application for cancelling bail but that would be a time consuming procedure.

The court took seriously, this “apprehension” stated in the affidavit that the petitioner would have taken help of their advocates for continuing illegal activities. “If any citizen faces action from the State and if he resorts to the legal remedy available to him, and if the citizen is protected, any attempt to obstruct it, may be viewed very seriously and even the option of initiating proceedings under the Contempt of Court Act, can also be explored. The matter is not stretched that far,” the court said.

After conjointly considering the material on record, the affidavit in reply of the detaining authority as well as the FIR, the court observed that “the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order”. The court drew the distinction between law and order and public order as is being done by high courts lately when considering cases of validity of orders of preventive detention.

The court cited Supreme Court’s decision in Pushker Mukherjee v/s. State of West Bengal AIR 1970 SC 852 and observed that the detention orders in these petitions fail on the test laid out by the apex court. the court, thus found it appropriate to quash and set aside the impugned detention orders.

“It is noted that, in the grounds of the detention, the detaining authority has recorded to the effect that, according to him, the activities of the petitioner create a sense of alarm and feeling of insecurity in the minds of public at large, however on weighing this vis-a-vis the material on record, this Court finds that, the citation of such words is more in the nature of rituals rather than with any significance to the alleged activities of the petitioner,” the court observed.

Thus, the court found the detention orders to be unsustainable and decided to quash the same.

The court pointed out that two detention orders are passed against women and the complainant in one of the FIRs resides in Mumbai. The court warned the authorities that private individuals may be throwing their weight around to meet their vested interest in private property disputes. The court said thus,

“The enthusiasm on the part of the State Authorities to throw the weight of the State in favour of one of the contesting parties, in the matters of private property disputes, may lend the State in embarrassing position one day. Further, in the property disputes – the financial stakes from both the sides may be very high. This may also lead to temptation to one of the parties, for soliciting help from the revenue and the police officers, for the considerations less known to law. These are the dangers which need to be kept in view by the Higher Authorities of the State.”

The court allowed all four petitions and set aside all detention orders passed on February 17, 2021.

The complete order may be read here:

A similar issue of misuse of PASA for settling financial disputes was highlighted by the Gujarat High Court in April. The same bench of Justice Upadhyay had 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.” In this case, petitioner Shakeel Kureshi was deemed dangerous person under PASA and the bench had pre-emptively stalled the execution of detention order against him.

Related:

Guj HC points out “rampant misuse” of PASA Act
Cannot be deemed bootlegger and detained under PASA based on one FIR: Guj HC
Guj HC restrains state from passing detention orders under PASA

The post Guj HC warns Police of misuse of PASA to settle private disputes appeared first on SabrangIndia.

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:

Related:

Guj HC restrains state from passing detention orders under PASA
Guj HC points out “rampant misuse” of PASA Act
Gujarat’s PASA Act: A long running saga of misuse and abuse

The post Cannot be deemed bootlegger and detained under PASA based on one FIR: Guj HC appeared first on SabrangIndia.

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:

Related:

Guj HC points out “rampant misuse” of PASA Act
Gujarat’s PASA Act: A long running saga of misuse and abuse

The post Guj HC restrains state from passing detention orders under PASA appeared first on SabrangIndia.

Gujarat High Court has pre-emptively stalled the execution of detention order under Prevention of Anti- Social Activities (PASA) Act while observing that there has been a rampant misuse of the law. The bench of Justice Paresh Upadhyay observed that it was a private dispute between the parties but the police had still filed the FIR and deemed the petitioner, Rohitbhai Luni, to be a ‘dangerous person’ under PASA and intended to detain him.

The counsel for the petitioner, Shakeel Kureshi submitted that the dispute is private in nature and under no circumstances can it be brought under definition of “dangerous person” under PASA. The petitioner sought protection from detention under PASA.

The court perused the complaint and observed that it was a private dispute between the parties. The court further stated that the complainant had resorted to arm twisting with the aid of the police who had readily filed the FIR.

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 court held that even if the petitioner may or may not be protected in the crimes registered under IPC, he cannot be termed as a dangerous person under PASA.

The court’s attention was also brought to another case where a woman was forced to remain in jail for two months after being detained under PASA after which the court set aside the detention order in February.

The detaining authority had not passed any detention order as yet, but the authority had submitted that it did intend to send the proposal to detain the petitioner under PASA. Thus, the court directed that if any such detention order is passed against the petitioner on the basis of this FIR, the same shall not be executed for period of one month from the date of service.

In August 2020 as well the Gujarat High Court had reprimanded the police as they had deemed the petitioner to be a ‘dangerous person’ under PASA for not wearing a mask and for having an altercation with the police.

The complete order may be read here:

Related:

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SC reserves order in Gautam Navlakha’s plea for default bail

NHRC refuses to take action against illegal detention of women anti-CAA protesters

Independent probe into Shiv Kumar’s alleged custodial torture ordered by Punjab & Haryana HC

The post Guj HC points out “rampant misuse” of PASA Act appeared first on SabrangIndia.