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SCA/10504/2011 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10504 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 ?
=========================================================
MOHAMMADRAFIK
ISMAILKHAN SHAIKH THROUGH HIS WIFE - Petitioner(s)
Versus
STATE
OF GUJARAT THRO. THE DEPUTY SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MS
KRISHNA U MISHRA for
Petitioner(s) : 1,
MR KP RAVAL, AGP for Respondent(s) : 3,
RULE
SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 07/10/2011
ORAL
JUDGMENT
1. This
petition is directed against the order of detention dated 08/07/2011
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. 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.
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 its power under Article 226 of the
Constitution of India.
4. 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.
5. In
the result, the petition is allowed. The order of detention dated
08/07/2011 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.)
(ila)
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