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SCA/13018/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13018 of 2009
======================================
HITESH
HAJAJI PRAJAPATI - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
======================================
Appearance :
MR
AJAY S JAGIRDAR for Petitioner
Mr.
Shivang Shukla, APP, for
respondents
======================================
CORAM
:
MR.
JUSTICE ANANT S. DAVE
Date
: 10/05/2010
ORAL
ORDER
Heard
learned counsel for the parties.
This
petition is directed against the order of detention dated 15.10.2009
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
detenue as a dangerous person as defined under Section 2(c) of
the Act.
Learned
counsel for the detenue submits that order of detention impugned in
this petition deserves to be quashed and set aside and the ground
that registration of five offences by itself cannot bring the case
of the detenue within the purview of definition under Section 2(c)
of the Act. Further, learned counsel for the detenue submits that
illegal activity carried out as alleged cannot have any nexus or
bearing with maintenance of public order and at the most it can be
said to be breach of law and order. Further, except statements of
witnesses and registration of FIRs, no other relevant or cogent
material is available on record connecting the alleged anti-social
activities of the detenue with breach of public order.
Learned
counsel for the detenue, placing reliance on the decisions reported
in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) v.
State of Gujarat reported in 2000(3) GLR 2696; (ii) Ashokbhai
Jivraj @Jivabhai Solanki v. Police Commisioenr, Surat reported in
2000(1) GLH 393; and (iii) Mustakmiya Jabbarmiya Shaikh v.
M.M.Mehta, reported in (1995)3 SCC 237, submitted that the case
on hand is squarely covered by the ratio laid down in the aforesaid
decisions. Learned counsel for the detenue further submits that it
is not possible to hold in the facts of the present case that the
activities of the detenue with reference to the criminal case/s had
affected even tempo of the society, posing a threat to the very
existence of the normal and routine life of the people at large or
that on the basis of the criminal case/s, the detenue had put the
entire social apparatus in disorder, making it difficult for whole
system to exist as a system governed by rule of law by disturbing
public order.
Learned
AGP for the respondent-State supported the detention order passed by
the authority and submitted that the detenue is a dangerous person
and sufficient material and evidence was found during the course of
investigation, which was also supplied to the detenue itself
indicate that the detenue is in habit of indulging into activities
as defined under Section 2(c) 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 FIR/s 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
as a dangerous person within the meaning of Section 2(c) of the Act
and 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 public order at the instance
of such person, it cannot be said that the detenue is a dangerous
person within the meaning of Section 2(c) of the Act. Except
general statement, there is no material on record which shows that
the detenue is acting in such a manner which is dangerous to the
public order. There are number of decisions of this Court as well as
the Hon’ble Apex Court on this point. In view of the ratio laid
down by the Hon’ble Supreme Court in the cases of (i) Ranubhai
Bhikhabhai Bharwad (Vekaria)(supra); (ii) Ashokbhai Jivraj @Jivabhai
Solanki (supra); and (iii) Mustakmiya
Jabbarmiya Shaikh (supra), the Court is of the opinion
that the activities of the detenue cannot be said to be dangerous to
the maintenance of public order and at the most fall under the
maintenance of law and order .
In
view of the above, I am inclined to allow this petition because
simplicitor registration of FIR/s by itself cannot have any nexus
with the breach of maintenance of public order and the authority can
have recourse under the Indian Penal Code and no other relevant or
cogent material exists for invoking powers under Section 3(2) of
the Act.
In
the result, this Special Civil Application is allowed. The impugned
order 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.)
[swamy]
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