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SCA/5654/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5654 of 2011
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 ?
=========================================================
HARISH
HIRABHAI SUMRA, THROUGH BROTHER NARESH HIRABHAI SUMRA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AR SHAIKH for
Petitioner(s) : 1,
MS VANDANA BHATT, ASST. GOVERNMENT PLEADER for
Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 11/05/2011
ORAL
JUDGMENT
1. This petition is directed
against the order of detention dated 28.03.2011 passed by respondent
No.2, in exercise of powers conferred under Section 3(1)/3(2) of the
Gujarat Prevention of Anti Social Activities Act, 1985 (in short “the
Act”) by detaining the detenue as a “bootlegger” as
defined under Section 2(b) of the Act.
2. Learned Advocate for the
detenue submits that registration of FIR/s itself cannot lead to
disturbance of even tempo of public life and therefore the public
order. It is, further, submitted that, except FIR/s registered under
the Bombay Prohibition Act, there was no other material before the
detaining authority, whereby it could be inferred reasonably that the
detenue is a ‘bootlegger’ within the meaning of Section 2(b) of the
Act and required to be detained as the detenue’s activities are
prejudicial to the maintenance of public health and public order. In
support of the above submission, learned Counsel for the detenue has
placed reliance on judgment of the Apex Court in the case of “Piyush
Kantilal Mehta vs. Commissioner of Police“, AIR 1989 SC
491, and the recent judgment, dated 28.03.2011, passed by the
Division Bench of this Court (Coram : S.K. Mukhopadhaya C.J. and J.B.
Pardiwala, J.) in Letters Patent Appeal No.2732 of 2010 in
Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner
of Police) which would squarely help the detenue.
3. Learned Assistant Government
Pleader submitted that registration of FIR/s would go to show that
the detenue had, in fact, indulged into such activities, which can be
said to be disturbing the public health and public order and in view
of sufficient material before the detaining authority to pass the
order of detention, no interference is called for by this Court in
exercise of powers under Article 226 of the Constitution of India.
4. Having heard the rival
submissions of the parties and having perused the record of the case,
I am of the view that FIR/s registered under the Bombay Prohibition
Act alone cannot be said to be sufficient enough to arrive at a
subjective satisfaction to the effect that the activities, as
alleged, are prejudicial to the public order or lead to disturbance
of public order. There has to be nexus and link for such activities
with disturbance of the public order. 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 recent judgment dated 28.03.2011 passed by the
Division Bench of this Court (Coram : S.K. Mukhopadhaya C.J. and J.B.
Pardiwala, J.) in Letters Patent Appeal No.2732 of 2010 in
Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner
of Police), I am of the view that the activities of the
detenue 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.
5. In the result, the petition
is allowed. The order of detention dated 28.03.2011 is quashed and
set aside. The detenue, is ordered to be set at liberty forthwith,
if not required in connection with any other case. Rule is made
absolute, accordingly. Direct Service is permitted.
(ANANT
S. DAVE, J.)
Umesh/
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