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SCA/4019/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4019 of 2010
=========================================================
GHAMBHIRSINH
@ PINTU MANUBHA JADEJA - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance :
MS
RV ACHARYA for
Petitioner(s) : 1,
MS JIRGA JHAVERI, ASSISTANT GOVERNMENT PLEADER
for Respondent(s) : 1 - 2, 4,
RULE SERVED BY DS for Respondent(s)
: 1 - 3, 5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 13/05/2010
ORAL
ORDER
Heard
learned Counsels for the parties.
This
petition is directed against the order of detention dated 20.01.2010
passed by the respondent No.3 in exercise of powers conferred under
Section 3(2) of the Gujarat Prevention of Anti Social Activities
Act, 1985 (for short the Act ) by detaining the detenue as a
bootlegger as defined under Section 2(b) 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 the solitary incident alleged against the detenue is not of
such a magnitude and intensity as to have the effect of disturbing
the public order so as to pass an order under Section 3(1) of the
PASA Act. She has further submitted that the detaining authority
has not applied her mind to the vital facts and there was
non-application of mind before recording the order of detention. In
support of the above contention, the learned Counsel has relied upon
the following case-laws :
a)
Judgment and order dated 22.08.2000 of the Division Bench of this
Court (Coram : M.R. Calla & R.R. Tripathi, JJ.), in Letters
Patent Appeal No.223 of 2000 in Special Civil Application No.554 of
2000 (Ashok Balabhai Makwana V. State of Gujarat).
b)
Piyush Kantilal Mehta V.
Commission of Police, AIR 1989 Supreme Court 491.
c)
Om Prakash V. Commissioner of Police and others, JT 1989 (4)
SC 177.
d)
Kanuji S. Zala V. State of Gujarat and others, 1992 (2) GLH
415.
Learned
AGP for the respondent State supported the detention order
passed by the authority and submitted that sufficient material and
evidence was found during the course of investigation, which was
also supplied to the detenue, indicating that the detenue is in the
habit of indulging into activities as defined under Section 2(b) 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 Counsels for the parties and considering the facts and
circumstance 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 solitary FIR 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 germane for the purpose of bringing the
detenue within the meaning of Section 2(b) of the Act unless and
until the material is there to make out a case that the person
concerned has become a threat and menace to the society so as to
disturb the whole tempo of the society and that the whole social
apparatus is in peril disturbing the public order at the instance of
such a person. In view of the ratio laid down by the Hon’ble
Supreme Court in the decisions cited by the learned Counsel for the
petitioner, the Court is of the opinion that the activities of the
petitioner cannot be said to be dangerous to the maintenance of the
public order and at the most fall under the maintenance of law
and order .
In
the result, this Special Civil Application is allowed. The impugned
order of detention dated 20.01.2010 passed by respondent No.3
Police Commissioner, Rajkot City is hereby quashed and set aside.
The detenue is ordered to be set at liberty, if not required in any
other case. Rule is made absolute accordingly. Direct Service is
permitted.
(Anant
S. Dave, J.)
Caroline
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