Friday, December 23, 2011

Before passing Order of detention under PASA act, the detaining authority must come to a definite finding that there is threat to the “public order”

While applying the ratio, laid down by the Hon. Supreme Court, in the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat [(2001) (1) GLH 393), having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), the Hon. Mr. Justice M.D. Shah of Gujarat High Court has recently quashed and set aside the impugned order of detention dated 08.07.2011 passed by the Police Commissioner, Ahmedabad City, and ordered the detenu to be set at liberty forthwith, with the landmark setting observation and judicial precedence in a recently adjudicated SPECIAL CIVIL APPLICATION No. 17648 of 2011 of NAGENDRA @ TINKU S/O PANDUVADIVEL MADRASI THROUGH HIS FRIEND - Petitioner as such that " It is held by the detaining authority that as the detenu is indulged in illegal activities, so it is required to restrain the detenu from carrying on further illegal activities, i.e. selling liquor. The detaining authority has placed reliance on the above registered offence and statements of unnamed witnesses. In the opinion of this Court, he activities of the detenu can, by no stretch of imagination, can be said to be disturbing the “public order”. It is seen from the grounds that a general statement that has been made by the detaining authority that consuming liquor is injurious to health. In fact, a perusal of the order passed by the detaining authority shows that the grounds which are mentioned in the order are in reference to the situation of “Law and order” and not “public order”. It is clear that before passing an order of detention of a detenu, the detaining authority must come to a definite finding that there is threat to the “public order” and it is very clear that the present case would not fall within the category of threat to “public order” Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside."

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