Preventive Detention Cannot Be a Substitute for Criminal Prosecution: Gujarat High Court Quashes Detention Order

Law and Order Issues Cannot Be Equated with Public Order Disturbance - In a significant judgment Gujarat High Court quashed the preventive detention order against Rajesh @ Raju Banarasilal Vasudev Pasi, who was detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA Act). The Court ruled that "mere criminal involvement does not justify preventive detention unless the acts are shown to have disturbed public order."

The detention order, issued by the Commissioner of Police, Ahmedabad, on September 2, 2023, labeled the petitioner as a "dangerous person" under Section 2(c) of the PASA Act. The High Court found that "there was no sufficient material to show that the petitioner’s alleged activities had affected public order, and the detaining authority's subjective satisfaction was legally flawed."

"Law and Order vs. Public Order – Detention Order Lacked Justification"
The petitioner challenged his detention, arguing that "his alleged offenses were related to law and order issues and did not amount to a public order disturbance." His counsel contended that the mere registration of criminal cases does not justify preventive detention unless the acts create a widespread sense of insecurity among the public.

The State defended the order, arguing that the petitioner was a habitual offender, and his activities were prejudicial to public order. The government cited the petitioner’s criminal antecedents, including two cases—one under Sections 324 and 114 IPC and another under Sections 395, 397, 325, 323, 294B, 506(2), and 120B IPC.

Rejecting the State's argument, the High Court ruled that "there exists a fundamental distinction between ‘law and order’ and ‘public order’. Every criminal offense disrupts law and order, but not every offense qualifies as a public order disturbance. Only those offenses that create fear and panic in society justify preventive detention."

"Past Criminal Cases Do Not Automatically Warrant Preventive Detention"
The Court referred to the Supreme Court’s ruling in Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad (1989 Supp (1) SCC 322) and held that "mere registration of criminal cases does not give rise to grounds for detention unless the conduct of the detenue creates an atmosphere of fear that disrupts public life."

The High Court noted that "the two criminal cases cited by the detaining authority were insufficient to establish that the petitioner’s activities had disturbed public order. The offenses were local in nature and did not affect society at large."

Emphasizing the principle that "detention under PASA cannot be used as a substitute for criminal prosecution," the Court ruled that "if a person is accused of committing offenses punishable under the Indian Penal Code, the appropriate course of action is to prosecute them under the ordinary criminal law, not to detain them without trial."

"Subjective Satisfaction of the Detaining Authority Was Legally Flawed"
The Court found that the detaining authority failed to establish a reasonable nexus between the petitioner’s alleged criminal activities and any serious threat to public order. Referring to the Supreme Court’s ruling in Pushkar Mukherjee v. State of West Bengal (1969 (1) SCC 10), the judgment observed that "a preventive detention order cannot be upheld merely on the basis of past criminal records unless the acts disrupt the even tempo of life and create widespread panic."

The High Court ruled that "there was no material on record to demonstrate that the petitioner’s acts had either adversely affected or were likely to adversely affect public order. The authority’s satisfaction was based on an incorrect understanding of the law, making the detention order illegal."

"Detention Order Quashed, Petitioner Ordered to Be Released"
Quashing the detention order, the Gujarat High Court ruled: "The order of detention dated September 2, 2023, passed by the Commissioner of Police, Ahmedabad, is hereby set aside. The detenue shall be set at liberty forthwith, provided he is not required in any other case."

The Gujarat High Court’s ruling reinforces the principle that preventive detention cannot be used arbitrarily and must be based on cogent evidence that an individual’s actions disturb public order. The judgment highlights that "law and order violations do not automatically justify detention under PASA, and authorities must differentiate between criminal prosecution and preventive detention."

By setting aside the detention order based on an improper legal assessment, the Court has reaffirmed that "personal liberty cannot be curtailed unless there is a compelling reason to do so under the preventive detention laws."

Date of Decision: 03 March 2025