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SCA/4308/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4308 of 2011
=========================================================
MOHSIN
CHAND SAIYAD, THROUGH COUSIN BROTHER SHAIKH MOHSHIN - Petitioner(s)
Versus
STATE
OF GUJARAT, THROUGH CHIEF SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MS SJ SHEIKH for Petitioner
Ms.Vandana
Bhatt, AGP, for
respondent-State
======================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 11/05/2011 ORAL ORDER
This
petition is directed against the order of detention dated 19.1.2011
passed by respondent No.2, in exercise of powers conferred
under Section 3(1) of the Gujarat Prevention of Anti Social
Activities Act, 1985 (in short” the Act) by detaining the
detenue as a “cruel person” as defined under Section
2(bbb) of the Act.
Learned
advocate for the detenue submits that the registered case/s under
the Prevention of Cruelty to Animals Act, 1960, would not indicate
anything to support disturbance to public order nor have the
activities of the detenue affected adversely the maintenance of
public order and, therefore, the order of detention passed by the
detaining authority cannot be sustained in law and is required to be
quashed and set aside.
Learned
AGP has opposed the petition and supported the order of detention in
letter and spirit.
Having
heard the learned counsel for the parties, on perusal of record,
considering the definition of ‘cruel person’ “means
a person who either by himself or as member or leader of a gang
habitually commits or attempts
to commit, abets the commission of an offence punishable under
Section 8 of the Bombay Animal Preservation Act, 1954”
contained in Section 2(bbb) of the PASA Act and the law laid down by
the Apex Court in the case of Gopalanachari vs. State of Kerala,
reported in AIR 1981 SC 674, where the Apex Court considered and
reiterated the law on personal liberty vis-a-vis rule of law and
procedure contemplated in Article 21 of the Constitution of India
which means fair and not formal procedure and Article 22 which
specifically spells out the procedural safeguards for preventive and
punitive detentions and a law providing for such detention should
conform to Article 22 of the Constitution of India, while referring
to the decisions of the Apex Court in the case of Maneka Gandhi
reported in [1978] 1 SCC 248 and in the case of Hoskot reported in
(1978) 3 SCC 544, and as held by the learned Single Judge of this
Court vide Oral Judgment dated 21.2.2005, in Special Civil
Application No.15105 of 2004 [Iliyas Mohammad hi vs. Commissioner of
Police], and keeping in mind the object of detention law being
prevention and not punishment, this Court is of the opinion that the
activities of the detenue cannot be said to be adversely affecting
the maintenance of public order and at the most fall under the
maintenance of “law and order”. Hence, the subjective
satisfaction arrived at by the detaining authority is vitiated.
In
the result, the petition is allowed. The order of detention dated
19.1.2011 passed by the respondent
No.2 is quashed and set aside. The
detenue is ordered to be set at liberty forthwith if not required
in connection with any other case. Rule is made absolute
accordingly. Direct service is permitted.
[ANANT
S. DAVE, J.]
[swamy]
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