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SCA/488/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 488 of 2009
=========================================================
PARULBEN
W/O ISMAILBHAI SALAT - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH DEPUTY SECRETARY & 2 - Respondent(s)
=========================================================
Appearance :
MR
ZUBIN F BHARDA for Petitioner(s) : 1,
MR HK
PATEL AGP for
Respondents,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 20/03/2009
ORAL
ORDER
Heard
learned counsel for the parties.
This
petition is directed against the order of detention dated 01.11.2008
passed by the respondent No.2
in exercise of powers conferred under Section 3(1) / 3(2) of the
Gujarat Prevention of Anti Social Activities Act, 1985 (for short
the Act ) by detaining the detenue as a dangerous person
as defined under Section 2(g) of the Act.
Learned
counsel for the detenue submits that order of detention impugned in
this petition deserves to be quashed and set aside on the ground
that registration of solitary complaint for the offences under
Sections 3, 4, 5, 6, 7 etc. of the Immoral Traffic (Prevention)
Act by itself cannot bring the case of the detenue within the
purview of definition under Section 2(g) of the Act. Further,
learned counsel for the detenue submits that illegal activity
carried out as alleged cannot have any nexus or bearing with
maintenance of public order and at the most it can be said to be
breach of law and order. Further, except statements of witnesses,
registration of FIRs and panchnama no other relevant or cogent
material is available on record connecting the alleged anti-social
activities of the detenue with breach of public order.
Learned
counsel for the detenue, placing reliance on the decisions reported
in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) v.
State of Gujarat reported in 2000(3) GLR 2696; (ii) Ashokbhai
Jivraj @Jivabhai Solanki v. Police Commissioner, Surat reported in
2000(1) GLH 393; and (iii) Mustakmiya Jabbarmiya Shaikh v.
M.M.Mehta, reported in (1995)3 SCC 237, submitted that the case
on hand is squarely covered by the ratio laid down in the aforesaid
decisions. Learned counsel for the detenue further submits that it
is not possible to hold in the facts of the present case that the
activities of the detenue with reference to the criminal case/s had
affected even tempo of the society, posing a threat to the very
existence of the normal and routine life of the people at large or
that on the basis of the criminal case/s, the detenue had put the
entire social apparatus in disorder, making it difficult for whole
system to exist as a system governed by rule of law by disturbing
public order. Learned counsel for the detenue submits that no reply
affidavit is filed by the State Government.
Learned
AGP for the respondent-State supported the detention order passed by
the authority and submitted that the detenue is a dangerous person
and sufficient material and evidence was found during the course of
investigation, which was also supplied to the detenue itself
indicate that the detenue is in habit of indulging into activities
as defined under Section 2(g) of the Act and considering the facts
of the case, the detaining authority has rightly passed the order of
detention and the detention order deserves to be upheld by this
Court.
Having
heard learned counsel for the parties and considering the facts and
circumstances of the case, it appears 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/s cannot have any bearing on the public order
since the law of the land i.e. Indian Penal Code and other relevant
penal laws are sufficient enough to take care of the situation and
that the allegations as have been levelled against the detenue
cannot be said to be germane for the purpose of bringing the detenue
as a dangerous person within the meaning of Section 2(g) of the Act
and unless and until the material is there to make out a case that
the person concerned has become a threat and a menace to the society
so as to disturb the whole tempo of the society and that the whole
social apparatus is in peril disturbing public order at the instance
of such person, it cannot be said that the detenue is a dangerous
person within the meaning of Section 2(g) of the Act. Except
general statement, there is no material on record which shows that
the detenue is acting in such a manner which is dangerous to the
public order. There are number of decisions of this Court as well as
the Hon’ble Apex Court on this point. In view of the ratio laid
down by the Hon’ble Supreme Court in the cases of (i) Ranubhai
Bhikhabhai Bharwad (Vekaria)(supra); (ii) Ashokbhai Jivraj @Jivabhai
Solanki (supra); and (iii) Mustakmiya
Jabbarmiya Shaikh (supra), the Court is of the opinion
that the activities of the detenue cannot be said to be dangerous to
the maintenance of public order and at the most fall under the
maintenance of law and order .
In
view of the above, I am inclined to allow this petition because
simplicitor registration of FIR/s by itself cannot have any nexus
with the breach of maintenance of public order and the authority can
have recourse under the Indian Penal Code and no other relevant or
cogent material exists for invoking powers under Section 3(1) / 3(2)
of the Act. That the State
Government has not filed affidavit in reply to this petition.
In
the result, this Special Civil Application is allowed. The impugned
order of detention dated 01.11.2008 passed by respondent No.2 is
hereby 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. Direct service is permitted.
(ANANT S. DAVE, J.)
*pvv
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