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SCA/9120/2008 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9120 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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 ?
=========================================================
GAFFARMOHAMMAD
HUSSAINMIYAN MIYANA - Petitioner(s)
Versus
COMMISSIONER
OF POLICE- AHMEDABAD CITY & 2 - Respondent(s)
=========================================================
Appearance
:
MS
DR KACHHAVAH for
Petitioner(s) : 1,MR
KAMLESH KACHHAVAH for
Petitioner(s) : 1,
MR
DR CHAUHAN,AGP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 13/10/2008
ORAL
JUDGMENT
1. Heard
learned advocate appearing on behalf of the petitioner-detenue and
learned AGP for the respondents.
2. The
petitioner-detenue has preferred this petition under Article 226 of
the Constitution of India for appropriate writ, order or direction
for quashing and setting the impugned order of detention dated
14.3.2008 passed by the respondent No.1-Police Commissioner,
Ahmedabad City, whereby in exercise of power under sub-section (2) of
Section 3 of the Gujarat Prevention of Anti Social Activities Act,
1985 (for short, ‘PASA’) and consequently, the petitioner has been
branded as a ‘Dangerous person?? and detained him in Jamnagar Jail.
3. From
the grounds of detention, it appears that six offences have been
registered against the petitioner ? detenue at Madhavpura Police
Station being CR Nos.I-308 of 2005, 26 of 2006, 254 of 2006, 255 of
2006, 291 of 2006, and 50 of 2008 under Sections 454, 457, 380, 397,
447, 511, and 114 of 114 of Indian Penal Code wherein it is alleged
that the petitioner is engaged in the illegal activity of theft of
iron pieces. On the basis of the registration of these cases, the
detaining authority after recording the subjective satisfaction, has
come to the conclusion that the present detenue’s aforesaid
activities are prejudicial to maintenance of ‘public order’ and
ultimately passed the impugned order of detention against him
branding him as a ?SDangerous Person??.
4. Except
few statements of anonymous witnesses, there is no material on record
which shows that the petitioner-detenue is carrying on illegal
activities of theft of iron bar pieces which is harmful to the health
of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki
v. Police Commissioner, Surat [(2001 (1) GLH 393)], having
considered the decision of the Hon’ble Apex Court in the case of Ram
Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this Court
held that the cases wherein the detention orders are passed on the
basis of the statements of such witnesses fall under the maintenance
of ‘Law and Order’ and not ‘Public Order’.
5. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenue, the detaining authority must come to
a definite finding that there is threat to the ‘Public Order’ and it
is very clear that the present case would not fall within the
category of threat to ‘public order’. In that view of the matter,
when the order of detention has been passed by the detaining
authority without having adequate grounds, for passing the said
order, cannot be sustained and, therefore, it deserves to be quashed
and set aside.
6. In
the result, this Special Civil Application is allowed. The impugned
order of detention dated 14.3.2008 passed by the detaining authority
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.
(M.D.Shah,
J.)
Sreeram.
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