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SCA/1425820/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14258 of 2008
=========================================================
SHYAM
SHITALDAS BHAGTANI - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MS
BANNA S DUTTA for
Petitioner(s) : 1,
SERVED BY RPAD - (R) for Respondent(s) : 1,
3,
Ms Moxa Thakkar, Asstt.GOVERNMENT PLEADER for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 18/03/2009
ORAL
ORDER
1. Heard
the learned Advocates appearing for the parties.
The
petition is directed against the order of detention dated 12.11.2008
passed by respondent No. 1, in exercise of powers conferred under
sub-section 3(2) of the Gujarat Prevention of Anti Social
Activities Act, 1985 (for short, ‘PASA Act’) by detaining the detenu
as a bootlegger as defined under section 2 (b) of the Act.
2. Learned
advocate for the detenu restricted his argument to the extent of
order of detention and submits that registration of one FIR itself
cannot lead to disturbance of even tempo of public life and
therefore, the public order. The order of detention is assailed by
the detenu on various grounds mentioned in the memo of the petition.
However, learned counsel for the detenu has focussed his arguments
mainly on the ground that except one 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 detenu’s
activities are prejudicial to the maintenance of public health and
public order. In support of the above submission, learned counsel
for the detenu has placed reliance on relevant observations made by
the Apex Court in the case of Piyush Kantilal Mehta vs.
Commissioner of Police, reported in AIR 1989 SC 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 v. State of Gujarat) which would
squarely help the detenu.
3. Learned
advocate for the detenu further submits that no affidavit-in-reply is
filed by the State Government.
4.
In view of the above, subjective satisfaction of the detaining
authority that antisocial activities carried out by the detenu are
detrimental to public order stands vitiated and order of detention
based on such satisfaction deserves to be quashed and set aside.
5.
Learned Assistant Government Pleader submitted that
registration of the complaint would go to show that the detenu 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.
6. Having
heard the rival submissions of the parties and perused the record of
the case, I am of the view that a single 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 one FIR 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 detenu 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. The
impugned order suffers from vice of non-application of mind inasmuch
as the case in which the detaining authority has placed reliance on
the above registered offence and statements of unnamed witnesses. In
the opinion of this court, the activities of the detenu can, by no
stretch of reasoning, be said to be disturbing the public order.
7. 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 detenu 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.
8. In
the result, the petition is allowed. The order of detention dated
12.11.2008 passed by the respondent
No. 1 is quashed and set aside. The detenu, 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.]
msp
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