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SCA/6760/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6760 of 2011
=========================================================
SUSHILKUMAR
GOVINDDAS NAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AR SHAIKH for
Petitioner(s) : 1,
MS ML SHAH AGP for Respondent(s) : 1, 3,
RULE
SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 11/08/2011
ORAL
ORDER
Heard
learned counsel for the parties.
This
petition is directed against the order of detention dated 30.04.2011
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 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 and the ground
that registration of solitary complaint for the offences under
Sections 3, 4, 5, 7 & 9 etc. of the Immoral
Traffic (Prevention) Act, 1956 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 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
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 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. the Act, 1956 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
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 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.
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 Act, 1956 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 30.04.2011 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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