Bombay High Court Quashes Detention Order in PASA Case for Non-Application of Mind — Failure to Consider Less Restrictive Alternatives and Inadequate Material Renders Preventive Detention Invalid. The court held that the detaining authority must consider whether the detenue can be dealt with under regular law before resorting to preventive detention under Section 3(2) of the Gujarat Prevention of Anti-social Activities Act, 1985.

Writ petition challenging preventive detention order under Gujarat Prevention of Anti-social Activities Act, 1985

Quashing of detention order and release of petitioner

Petitioner was detained under Section 3(2) of the Act on grounds of being a bootlegger and acting prejudicial to public order

Detention order passed by District Magistrate on 29 January 2021; executed on 8 February 2021

Whether the detention order suffers from non-application of mind for not considering less restrictive alternatives Whether the detaining authority's subjective satisfaction that the petitioner is a 'bootlegger' is based on adequate material Whether the delay in execution of the detention order vitiates the subjective satisfaction Whether the detenue's right to make an effective representation under Article 22(5) was violated

Petitioner argued that the detaining authority did not consider whether the petitioner could be dealt with under regular criminal law or by less drastic measures such as cancellation of bail or externment proceedings. Petitioner contended that the material did not show that the petitioner was habitually engaged in bootlegging, and the single incident did not justify preventive detention. Petitioner submitted that there was an unexplained delay of 10 days between the passing of the order and its execution, indicating lack of urgency. Petitioner argued that the detenue was not supplied with the documents relied upon, impairing his right to make a representation. Respondents argued that the detention order was validly passed based on the material and the detaining authority had applied its mind.

The detaining authority must consider whether the detenue can be dealt with under the regular criminal law or by less restrictive alternatives before resorting to preventive detention. Failure to do so amounts to non-application of mind and vitiates the detention order. Additionally, the subjective satisfaction must be based on adequate material showing habitual conduct, and unexplained delay in execution indicates lack of urgency. The right to make an effective representation under Article 22(5) requires supply of all relied-upon documents.

The detaining authority has not considered the possibility of dealing with the petitioner under the regular criminal law or by taking recourse to less drastic alternatives such as cancellation of bail or externment proceedings. The material on record does not indicate that the petitioner was habitually engaged in bootlegging. The satisfaction that the petitioner is a 'bootlegger' is thus not based on adequate material. There is an unexplained delay of about 10 days between the passing of the detention order and its execution, which indicates lack of urgency and vitiates the subjective satisfaction. The detenue was not supplied with the documents relied upon by the detaining authority, thereby impairing his right to make an effective representation under Article 22(5) of the Constitution.

The detention order was passed on 29 January 2021 by the District Magistrate, Dadra and Nagar Haveli, under Section 3(2) of the Gujarat Prevention of Anti-social Activities Act, 1985. The order was executed on 8 February 2021. The petitioner filed the present writ petition on 12 February 2021 challenging the detention order. The petition was heard and reserved for judgment on 8 July 2021, and judgment was pronounced on 28 July 2021.

• Gujarat Prevention of Anti-social Activities Act, 1985: Section 3(2), Section 2(b), Section 3(4), Section 9
• Constitution of India: Article 22(5)