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SCA/5604/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5604 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
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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 ?
=========================================================
MOHANLAL
MANSAJI MALI - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SANJAY PRAJAPATI for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 2.
MR
NJ SHAH, AGP for Respondent(s) :
3.
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 14/05/2010
ORAL
JUDGMENT
1. By
way of this petition, the detenu
has challenged the order of detention dated 11.2.2010 passed by the
Commissioner of Police, Ahmedabad City under the provisions of
sub-Section (1) of Section 3 of the Gujarat Prevention of Anti-social
Activities Act, 1985 (hereinafter referred to as the ‘PASA Act’).
2. Learned
Advocate for the detenu has invited my attention to the order of
detention dated 11.2.2010 by which the detenu was arrested and sent
to Amreli Jail on 11.2.2010. As the grounds of detention, one offence
has been shown as registered against the detenu which pertains to
‘immoral trafficking’.
2.1 Learned
Advocate has stated that on the basis of aforesaid single offence,
the detaining authority came to the conclusion that the detenu was
immoral traffic offender within the meaning of Section 3(1)of the
PASA Act. It was also stated in the impugned order that as the said
activities of the detenu are dangerous and affecting maintenance of
‘public order’, order of detention has been passed against him.
2.2 In
support of his case, learned advocate has placed reliance on a
decision of this Court in the case of Vahidbhai Saiyadbhai
Sheikh v. State of Gujarat & Ors reported in 2003(3)
GLH 697 wherein at Para-9
it has been held as under:
9. Strikingly,
in this case, the authority did not choose even to file prosecution
and the question of detenu being released on bail could be considered
when prosecution is filed and some material is placed before the
detaining authority that the detenu was likely to be released on
bail. The detaining authority, in this case, instead has chosen to
rely upon an incident and from the said incident, the detaining
authority reached to subjective satisfaction that the detenu was
likely to continue his activities in future when there was no
material at all on record revealing such repeating tendency on the
part of the detenu. The order of detention, therefore, is vitiated by
vice of non-application of mind.
3. Heard
learned Counsel for the parties and perused the documents placed on
record. I have also considered factual and legal aspects emerging
from the record of the petition and the rival submissions. In the
case on hand, the only material is one offence registered against the
detenu which pertains to ‘immoral trafficking’. Registration of a
solitary offence is not sufficient material to infer a certain
habit of the detenu and that on the basis of solitary registered
offence it would be far fetching to draw inference that the detenu
was likely to commit such crimes again and again.
I am, therefore, of the view that the detaining Authority has passed
the order of detention without there being any credible or cogent
material on record in this behalf. Even, taking into consideration,
facts and circumstances of the case and allegations made against the
detenu it can be, at the most, said that there is disturbance of only
‘law and order’ and not ‘public order’.
3.1 Hence,
in view of the above discussion as well as in view of the decision of
this Court in the case of Vahidbhai Saiyadbhai
Sheikh (Supra),
this Court is of the opinion that the order of detention deserves to
be quashed and set aside.
4. The
petition is allowed. The impugned order of detention dated 11.2.2010
passed against the detenu is hereby quashed and set aside. The detenu
is ordered to be set at liberty forthwith, if not required in any
other case. Rule is made absolute accordingly. Direct service is
permitted.
(
M.D.Shah,J )
pathan
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