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SCA/5606/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5606 of 2010
=============================================
DILIPKUMAR
ALIAS KALU CHATURBHAI PARMAR - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=============================================
Appearance :
MR
KAMLESH KACHHAVAH for Petitioner(s) : 1,
MR PRANAV TRIVEDI, ASST.
GOVERNMENT PLEADER for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 14/05/2010
ORAL ORDER
Heard
learned counsel for the parties.
This
petition is directed against the order of detention dated 15.01.2010
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 lady-detenue as a bootlegger as
defined under Section 2(b) of the Act.
Learned
counsel for the detenue submits that order of detention impugned in
this petition deserves to be quashed and set aside on the ground
that three solitary incidents 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.
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 detenue, indicating that the detenue 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.
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 four 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
detenue cannot be said to be germane for the purpose of bringing the
detenue 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 detenue 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 .
In
the result, this Special Civil Application is allowed. The impugned
order 15.01.2010 of detention passed by respondent No.1 is hereby
quashed and set aside. The detenue 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.)
~gaurav~
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