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SCA/1235/2008 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1235 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NASIMBANU
W/O.MOHD.HANIF ABDULLABHAI MALEK THRO MOHD. - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ANIL S DAVE for
Petitioner(s) : 1,
MR AJ DESAI ASST. GOVERNMENT PLEADER for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/06/2008
ORAL
JUDGMENT
1.0 By
way of this petition, the detenu has challenged the order of
detention dated 03.12.2007 passed by Police Commissioner, Ahmedabad
under the provisions of sub-Section (2) of Section 3 of the Gujarat
Prevention of Anti-social Activities Act, 1985 (hereinafter referred
to as the ‘PASA Act’).
2.0 Learned
Advocate for the detenu has invited my attention to the order of
detention dated 03.12.2007 by which detenu was arrested and sent to
District Jail, Mehsana as well as to the grounds supplied therein. As
per the grounds of detention, four criminal cases are shown as
registered against the detenu which pertains to ‘Prohibition’.
2.1 He has
further submitted that in the order of detention it was stated that
the detenu is carrying on anti-social activities and on the basis of
aforesaid offences of ‘bootlegging’ registered against the detenu,
she was termed as ‘Bootlegger’ within the meaning of Section 2(b)of
the P.A.S.A. Act. It was also stated in the impugned order that as
the said bootlegging activities of the detenu are dangerous and
affecting maintenance of ‘public order’ and ‘public health’, order of
detention has been passed against her.
2.2 He has
submitted that on the basis of aforesaid criminal cases registered
against the detenu, it cannot be said that the activities of the
detenu has become prejudicial to the maintenance of ‘Public Order’.
In support of his case he has placed reliance on a decision of the
Hon’ble Apex Court in the case of ?SArun Ghosh Vs. State of
West Bengal?? 1970(1)SCC 98 wherein the Hon’ble Apex Court
at Para-3 held as under,
?S…that
disturbance of public order is to be distinguished from acts directed
against individuals which do not disturb the society to the extent of
causing a general disturbance of public tranquility. It is the
degree of disturbance and its effect upon the life of the community
in a locality which determines whether the disturbance amounts only
to a breach of law and order. The question whether a man has only
committed a breach of law and order or has acted in a manner likely
to cause a disturbance of the public order is a question of degree
and the extent of the reach of the act upon the society. There is no
formula by which one case can be distinguished from another.??
2.3 Similar
principle has been followed by the Hon’ble Apex Court in the case of
?SDarpan @ Dharban Kumar Sharma Vs. State of Tamil Nadu and
Ors.?? reported in (2003)2 SCC 313 and by this Court in the
case of ?SSurajsinh @ Suru @ Suresh Lallusinh Rajput Vs. State
of Gujarat and Ors.?? reported in 2004(1)GLH 454.
3.0 The
learned A.G.P. for respondent-detaining Authority has supported the
order of detention as well as grounds stated therein and has
contended that the Authority has passed the impugned order after
taking into consideration all the facts and circumstances of the
case, and hence, no case is made out calling for interference of this
Court.
4.0 As a
result of hearing and perusal of the record it appears that in this
case the only material is aforesaid criminal cases registered against
the detenu and on the basis of that it cannot be said that the
activity of the detenu has become a threat to the maintenance of
‘public order’ and ‘public health’. The offences registered against
the detenu pertains to prohibition to which I have already made
reference in my earlier part of the judgment. Mere involvement of
detenu in bootlegging activities may not amount to dangerous activity
by detenu and mere mention of them unless supported by any evidence
cannot be said to be material and germane for the purpose of arriving
at subjective satisfaction that the activity of the detenu is
prejudicial to the maintenance of ‘public order’ and ‘public health’.
4.1 I am,
therefore, of the view that the detaining authority has passed the
order of detention without there being any credible or cogent
material on record in this behalf. I have considered factual and
legal aspects emerging from the record and also considered the rival
submissions and the facts of the case and also considered the
judgment of the Hon’ble Apex Court in the case of ?SArun
Ghosh??(Supra) as well as ?SDarpan @ Dharban Kumar
Sharma??(Supra) and the judgment of this Court in the case
of ?SSurajsinh @ Suru @ Suresh Lallusinh Rajput??
(Supra). In view of the facts and circumstances of the present case
and in view of the ratio laid down in the decision mentioned above,
the order of detention cannot be sustained and it deserves to be
quashed and set aside.
5.0 In the
result, this petition is allowed. The order of detention dated
03.12.2007 passed by Police Commissioner, Ahmedabad is hereby quashed
and set aside. The detenu is, therefore, ordered to be set at
liberty forthwith, if she is not required in connection with any
other case by the Authority. Rule is made absolute. Direct service
is permitted.
(M.D.
Shah,J.)
Umesh/
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