Preventive detention for gambling with FIR simpliciter cannot be sustained

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The Courts have often held that preventive detention laws are an ‘exceptional measure reserved for tackling emergent situations’. Prevention detention means detention of individuals with out trial and conviction and based on mere suspicion. Several states in the country have enacted preventive detention laws with a stated object of maintaining peace and order by detaining the anti-social elements.

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The activities that would lead to invocation of preventive detention laws are wide and include activities by dacoits, drug-offenders, goondas, immoral traffic offenders, land grabbers, spurious seed offenders, insecticide offenders, and fertiliser offenders among others. All these activities appear to have a connection to public order.

A common activity across the preventive detention laws that could lead to detention is ‘gambling.’ The offenders under the state gambling acts can also be detained under the preventive detention laws with out any trial. Over a period of time states have specifically amended the preventive detention laws to include gambling related offences within the scope. For example, Gujarat in 2020 amended the Gujarat Prevention of Anti-social Activities Act, 1985 (PASA Act) to clarify certain aspects in relation common gaming house and offences under the the Gujarat Prevention of Gambling Act, 1887.

In recent times, preventive detention for gambling offences has been challenged before the Gujarat High Court. In both the cases, Dharmaraj vs. State of Gujarat and Aseshbhai vs. State of Gujarat, the High Court held that order of detention cannot be sustained. Relying on past precedents, the Court has held that a mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the act.

The Court drew distinction between “law and order” problem and “public order” problem as mentioned under the PASA Act and opined that simpliciter registration of FIR/s under the Gambling Act by itself cannot have any nexus with the breach of maintenance of public order and therefore cannot be invoked against the offender leading to his detention.