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SCA/14730/2010 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14730 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=========================================
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 ?
=========================================
BHOPABHAI
RAVJIBHAI BHIL - Petitioner(s)
Versus
COMMISSIONER
OF POLICE (AHMEDABAD CITY) & 2 - Respondent(s)
=========================================
Appearance :
MR
CHETAN B RAVAL for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 2.
MR
KARTIK PANDYA, AGP for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/12/2010
ORAL JUDGMENT
1. Heard
learned counsel for the parties.
2. This
petition is directed against the order of detention dated 23.08.2010
passed by the respondent No.1 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 detenu as a bootlegger as defined
under Section 2(b) of the Act.
3. Learned
counsel for the detenu submits that order of detention impugned in
this petition deserves to be quashed and set aside on the ground that
five offences 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. He 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.
4. 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 detenu, indicating that the detenu 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.
5. 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 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 detenu cannot be said
to be germane for the purpose of bringing the detenu 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 detenu
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 .
6. In
the result, this Special Civil Application is allowed. The impugned
order dated 23.08.2010 of detention passed by respondent No.1 is
hereby quashed and set aside. The detenu 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.)
mrpandya
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