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SCA/13673/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13673 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 ?
=========================================
MANUBEN
W/O VASANTBHAI HIRUBHAI INDREKAR (CHHARA) - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH DEPUTY SECRETARY & 2 - Respondent(s)
=========================================
Appearance :
MR
JS RATHOD for
Petitioner(s) : 1,
MR KP RAVAL, LD. ASST. GOVERNMENT PLEADER for
Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 14/10/2011
ORAL
JUDGMENT
This
petition is directed against the order of detention dated 18th
July, 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 FIR’s itself
cannot lead to disturbance of even tempo of public life and
therefore the public order. He further submits 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 Supreme Court 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.
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 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 FIR’s 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 28.03.2011 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.
In
the result, the petition is allowed. The order of detention dated
18th July, 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.
(Z.
K. Saiyed, J)
Anup
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