Gujarat High Court has noted that offences alleged in the First Information Report (FIR) have no bearing on public order.
The single-judge bench of Justice A. P. Thaker observed that detention order under Section 3 (2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 cannot be passed on mere instance of an FIR.
CONTENTIONS OF THE PETITIONER:
Learned Counsel for the petitioner-detenu vehemently argued that the entire exercise undertaken by the detaining authority is merit less and since there is no strict compliance with the provisions of the act in question, the detention order itself is illegal ab initio.
He relied on catena of decisions including Banka Sneha Sheela Vs. State of Telangana, 2021 Latest Caselaw 301 SC.
CONTENTIONS OF THE ADDITIONAL GOVERNMENT PLEADER:
The AGP submitted that the offence against the detenu is under the NDPS Act and considering the effect of the Narcotic Drugs, the authority has properly passed the impugned order and which deserves to be upheld by this Court.
OBSERVATIONS OF THE COURT:
The Court at the outset recalled Section 3 of the Illicit Trafficking in NDPS Act, 1988 for convenience. The Court was prima facie doubtful of the involvement of the detenu which may fall under the definition of Illicit Trafficking in NDPS Act under Section 2(e).
The Court observed that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenu cannot be said to be germane for the purpose of bringing the detenu within the meaning of section 3(1) of the Act.
"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 3(1) of the Act. Except general statements, there is no material on record which shows that the detenu is acting in such a manner, which is dangerous to the public order."
PRECEDENTS OF THE COURT
The Court referred to Pushkar Mukherjee & Ors Vs. The State of West Bengal, 1968 Latest Caselaw 271 SC wherein the distinction between 'law and order' and 'public order' has been clearly laid down.
It also referred to Rekha Vs. State of Tamil Nadu Tr.Sec.To Govt. & ANR, 2011 Latest Caselaw 286 SC.
The Court therefore allowed the petition noting that registration of FIR 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.