Gujarat High Court Case Information System
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SCA/16044/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16044 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHAILALBHAI
@ BHALO NANABHAI SOLANKI THROUGH WIFE - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH DEPUTY SECRETARY & 2 - Respondent(s)
=========================================================
Appearance :
MS
KRISHNA U MISHRA for Petitioner(s) : 1,
MS VANDANA BHATT AGP for
Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/02/2011
ORAL
JUDGMENT
Petitioner
is ordered to be kept on preventive detention by an order dated
13.9.2010 passed by the Police Commissioner, Vadodara, in exercise
of powers under Section 3(1) of Prevention of Antisocial Activities
Act (for short ‘PASA’).
Grounds
of detention would reveal that there was one case of prohibition.
Offence was registered against petitioner at Karelibaug Police
Station, Vadodara on 1.9.2010. It is recorded that the petitioner is
a head strong person engaged in selling liquor. To prevent him from
such similar offence, it is required to be placed him under
detention.
Counsel
for the petitioner, however, submitted that that only for
involvement in one case of prohibition, the petitioner cannot be
said to be an antisocial element. His detention is, therefore,
illegal. Reliance was placed in the case of Ashokbhai Jivraj @
Jivabhai Solanki V/s. Police Commissioner,, Surat & Ors.
reported in 2001(1) GLH 393; wherein Division Bench of the High
Court made following observations.
“So
far as the cases against the detenu are concerned,
they have already been registered. They were against
persons mentioned therein which is stated in the
grounds of detention by the detaining authority.
Regarding two statements, having taken into account the
law laid down by the Supreme Court in Ram Manohar Lohia
vs. State of Bihar, AIR 1966 SC 740 and reiterated from
time to time including the decisions referred to by us
hereinabove, the case falls under the maintenance of “law
and order” and not “public order”. The subjective
satisfaction arrived at by the detaining authority,
therefore, cannot be said to be legal, valid and in
accordance with law. Since in the facts and
circumstances, an order of detention could have been
passed by the detaining authority for maintenance of
“public order”, the order deserves to be quashed and is
hereby set aside. The detenu is ordered to be set at
liberty forthwith unless required in any other case. Appeal is accordingly allowed. No order as to costs”.
Counsel
also relied on unreported decision of learned single Judge dated
25.10.2005 passed in Special Civil Application No.18901 of 2005;
wherein, it was held and observed as under:
“6.
In the present case the reliance is only placed upon the solitary
offence, without having any basis and dehors the relevant and
credible materials to arrive at a conclusion about disturbance of
public order by the prejudicial activities of the detenue and
therefore, powers exercised by the authority while passing the order
of detention is the result of non-application and the order of
detention requires to be quashed and set aside.
7.
For the reasons recorded hereinabove, the order of detention dated
22.06.2005 passed by the respondent no.2, is hereby quashed and set
aside. The detenue Jyotiben Wd/o. Rameshbhai Morarbhai Koli Patel
is ordered to be set at liberty forthwith if she is not required
further in any other case by any other authority”.
Learned
AGP opposed the petition contending that order of detention was
based on subjective satisfaction of the authority.
From
the record, I find that admittedly, the petitioner was involved in
only one case of selling illicit liquor. Except for recording of
said FIR, no other cases are registered against the petitioner. He
is not found to be involved in any other criminal activities so far.
Judgments referred above would therefore cover his case.
In
view of the above, I am of the opinion that order of detention is
bad in law. Petitioner is ordered to be released forthwith if not
required in any other criminal case. Petition is allowed. Rule made
absolute accordingly.
(AKIL
KURESHI, J.)
(ashish)
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