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SCA/14797/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14797 of 2010
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LAXMIBEN
WD/O BALDEVJI TALAJI THAKOR THROUGH COUSIN LALJI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
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Appearance :
MS
KRISHNA U MISHRA for Petitioner
Mr.
L.R. Pujara, AGP for Respondent(s) : 1, 3,
RULE SERVED BY DS for
Respondent(s) : 1 - 2.
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 03/12/2010
ORAL
ORDER
Heard
learned counsel for the parties.
This
petition is directed against the order of detention dated 30.8.2010
passed by the respondent No.2 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
lady-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 four incidents alleged against the detenu
are not of such 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 his 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:
Judgment
and order dated 22.8.2000 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 vs. State of Gujarat);
Piyush
Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme Court
491
Om
Prakash vs. Commissioner of Police and others, JT 1989 (4) SC 177
Kanuji
S. Zala vs. state of Gujrat ando thers, 1999 (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 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 four FIRs 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 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 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 the public order at the instance of
such 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 detenue 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 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.)
[swamy]
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