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SCA/12264/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12264 of 2009
======================================
MOHD
NASIR MOHD ISMAIL PATHAN - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
======================================
Appearance :
MR
HR PRAJAPATI for Petitioner
Mr.
Kartik Pandya, AGP for the
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 30.10.2009
passed by the respondent No.2 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 bootlegger as defined under Section 2(b) of the
Act.
Learned
counsel for the detenue submits that order of detention impugned in
this petition deserves to be quashed and set aside on the ground
that two incidents alleged against the detenu
is not of such magnitude and intensity as to have the effect of
disturbing the public order so as to pass an order under Section
3(1) of the PASA Act. He has further submitted that the detaining
authority has not applied his mind to the vital fact and there was
non-application of mind before recording the order of detention. In
support of his contention, he has relied upon the following
case-laws:
Judgment
and order dated 22.8.2000 of the Division Bench of this Court
(Coram: M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent
Appeal No.223 of 2000 in Special Civil Application No.554 of 2000
(Ashok Balabhai Makwana vs. State of Gujarat);
Piyush
Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme Court
491
Om
Prakash vs. Commissioner of Police and others, JT 1989 (4) SC 177
Kanuji
S. Zala vs. state of Gujrat ando thers, 1999 (2) GLH 415.
Learned
AGP for the respondent-State supported the detention order passed by
the authority and submitted that 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(b) 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 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 within
the meaning of Section 2(b) 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. In
view of the ratio laid down by the Hon’ble Supreme Court in the
decisions cited by the learned counsel for the petitioner,
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
the result, this Special Civil Application is allowed. The impugned
order of detention passed by respondent No.2 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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