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SCA/676/2009 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 676 of 2009
=========================================================
RAFIQ
@ BHANNO JUSABBHAI MATHUPUTRA - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================================
Appearance :
MR
PRATIK Y JASANI for Petitioner(s) : 1,
MR HK
PATEL AGP for
Respondents,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 20/03/2009
ORAL
ORDER
Heard
learned counsels appearing for the parties.
This
petition is directed against the order of detention dated 09.11.2008
passed by respondent No.2,
in exercise of powers conferred under Section 3(1) / 3(2) of the
Gujarat Prevention of Anti Social Activities Act, 1985 (in short
the Act) by detaining the detenue as a bootlegger as defined
under Section 2(b) of the Act.
Learned
advocate for the detenue restricted his arguments to the extent of
order of detention and submits that registration of FIR/s itself
cannot lead to disturbance of even tempo of public life and
therefore the public order. The order of detention is
assailed by the detenue on various grounds mentioned in the memo of
the petition. However, learned counsel for the detenue has focused
his arguments mainly on the ground that except solitary FIR
registered under the Bombay Prohibition Act, there was no other
material before the detaining authority whereby it could be inferred
reasonably that the detenu is a ‘bootlegger’ within the meaning of
Section 2(b) of the Act and required to be detained as the detenue’s
activities are prejudicial to the maintenance of public health and
public order. In support of the above submission, learned counsel
for the detenue has placed reliance on relevant observations made by
the Apex Court in the case of Piyush
Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme Court
491 and the 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) which would
squarely help the detenue. Learned advocate for the detenue further
submits that no affidavit-in-reply is filed by the State Government.
In view of the above, subjective satisfaction of the detaining
authority that antisocial activities carried out by the detenue are
detrimental to public order stands vitiated and order of detention
based on such satisfaction deserves to be quashed and set aside.
Learned
Assistant Government Pleader submitted that registration of solitary
complaint would go to show that the detenue had, in fact, indulged
into such activities, which can be said to be disturbing the public
health and public order. Learned Assistant Government Pleader
further submitted that there was sufficient material before the
detaining authority to pass the order of detention and no
interference is called for by this Court in exercise of its power
under Article 226 of the Constitution of India.
Having
heard the rival submissions of the parties and perused the record of
the case, I am of the view that solitary complaint registered under
the Bombay Prohibition Act alone cannot be said to be sufficient
enough to arrive at subjective satisfaction to the effect that the
activities, as alleged, are prejudicial to the public order. The
registration of FIR/s under Bombay Prohibition Act ipso facto does
not lead to disturbance of public order. There has to be nexus and
link for such activities with disturbance of the public order. The
activities of the detenue must, in the backdrop of the facts,
reflect that such activities disturbed or likelihood of disturbing
the tempo of normal life of society or general peace and
tranquility or create a sense of alarm and insecurity in the
locality.
On
careful perusal of the material available on record and the ratio
laid down by the Apex Court in the case of Piyush Kantilal Mehta
(supra) and the 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), I am of the view that the
activities of the detenue cannot be said to be in any manner
prejudicial to the public order and therefore, the order of
detention passed by the detaining authority cannot be sustained and
is required to be quashed and set aside.
In
the result, the petition is allowed. The order of detention dated
09.11.2008 passed by the respondent
No.2 is quashed and set aside. The detenue, is ordered to be
set at liberty forthwith if he is not required in connection with
any other case. Rule is made absolute accordingly. Direct service is
permitted.
[ANANT
S. DAVE, J.]
*pvv
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