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Vipul M. Pancholi, J
This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has challenged the order dated 17.07.2021 passed by respondent No.2 Director General of Police, CID Crimes and Railways, Gandhinagar, whereby the petitioner is detained under the provision of Section 2(f) of the Anti-Social Activities Act, 1985 ('the Act' for short). The detaining authority has passed the aforesaid order of detention while exercising powers conferred under Section 3(1) of the Act.
Heard Ms. Dilbur Contractor, learned advocate for the petitioner and Mr.Ayan Patel, learned Assistant Government Pleader for the respondents.
Learned advocate for the petitioner has submitted that one FIR is filed against the petitioner under Section 20(b) of the Narcotic Drugs and Psychotropic Substance, 1985 on 07.02.2020 before Hadad Police Station. It is submitted that on the basis of the registration of the said FIR, the respondent detaining authority has passed the impugned order. It is submitted that the order of detention has been passed after a period of about One year and five months from the date of registration of the FIR. Thus, on the ground of delay in passing the impugned order, the same be quashed and set aside.
3.1 It is further submitted that mere registration of an FIR against the petitioner itself is no ground for the detaining authority to arrive at the conclusion that the activities of the petitioner are prejudicial to the maintenance of the public order. It is also contended that no legally sustainable satisfaction is recorded by the detaining authority before passing the impugned order. It is, therefore, urged that the impugned order be quashed and set aside.
Learned Assistant Government Pleader for the respondent State Authorities has supported the detention order passed by the detaining authority and submitted that the impugned order is based on sufficient material and the detaining authority has rightly arrived at the conclusion that the activities of the petitioner are prejudicial to the maintenance of the public order. It is, therefore, submitted that this petition be dismissed.
Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that the detaining authority has exercised the powers, treating the petitioner as a 'drug offender' within the meaning of Section 2(f) of the Act. An FIR, which is the basis to treat the petitioner as such a person is referred to in the impugned order and further details in that regard are on record. The said FIR and other material which is on record is considered by this Court. On conjoint consideration thereof, it transpires that the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order. The distinction between 'the law and order' as 'the public order' needs to be kept in mind, in view of the decision of the Honourable Supreme Court in the case of Pushker Mukherjee v/s. State of West Bengal reported in AIR 1970 SC 852. The impugned order, on facts, fails on this test. The impugned order therefore needs to be quashed and set aside. It is pertinent to note that the detaining authority has recorded grounds in the order of detention 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, from the material on record, this Court finds that the alleged activities of the petitioner cannot be said to have created a sense of alarm and feeling of insecurity in the minds of the public at large. The impugned order, therefore, is unsustainable and required to be quashed and set aside.
Accordingly, the present petition is allowed. The impugned order of detention dated 17.07.2021 passed by the respondent detaining authority is quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case. Rule is made absolute accordingly.