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SCA/12314/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12314 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
JAN
MOHAMMED @POPAT S/O SULEMAN TAILY - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
VAIBHAV A VYAS for
Petitioner(s) : 1,
MS CHETNA SHAH, Assistant Government Pleader
for Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/11/2011
ORAL JUDGMENT
This
petition is directed against the order of detention dated 16.7.2011
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.
Learned
advocate for the detenue submits that registration of FIRs itself
cannot lead to disturbance of even tempo of public life and
therefore the public order. The order of detention is
assailed by the detenue on various grounds mentioned in the memo of
the petition. However, learned counsel for the detenue submits that,
except FIRs registered under the Bombay Prohibition Act, there was
no other material before the detaining authority whereby it could be
inferred reasonably that the detenu 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 Supreme Court
491 and the recent judgment dated 28.3.2011 passed by the
Division Bench of this Court [Coram: S.K. Mukhopadhaya C.J. &
J.B. Pardiwala, J].] in
Letters Patent Appeal No2732 of 2010 in Special Civil Application
No.9492 of 2010 (Aartiben vs. Commissioner of Police)
which would squarely help the detenue.
Learned
Assistant Government Pleader submitted that registration of FIRs
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 its power under Article 226 of the
Constitution of India.
Having
heard the rival submissions of the parties and perused the record of
the case, I am of the view that FIRs registered under the Bombay
Prohibition Act alone cannot be said to be sufficient enough to
arrive at 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 28.3.2011 passed by the Division Bench of this
Court [Coram: S.K. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in
Letters Patent Appeal No2732 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.
In
the result, this Special Civil Application is allowed. The order of
detention dated 16.7.2011 is hereby quashed and set aside. The
detenue, is ordered to be set at liberty forthwith if he is not
required in connection with any other case. Rule is made absolute
accordingly. Direct service is permitted.
(Z. K. SAIYED,
J.)
kks
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