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SCA/19496/2005 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 19496 of 2005
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PRAKASHBHAI
THAKRARAM BISHNOI
Versus
STATE
OF GUJARAT & Others
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Appearance
:
Mrs.
Banna Dutta for the petitioner
Mrs.
Hansa Punani, AGP, for the
respondents
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CORAM
:
HONOURABLE
MR.JUSTICE A.S.DAVE
Date
: 25/10/2005
ORAL
ORDER
By
way of this petition under Article 226 of the Constitution of India,
the detenu has challenged the order of detention dated 1.6.2005
passed by the respondent No.2 in exercise of powers under sub-section
(2) of Section 3 of the Gujarat Prevention of Anti Social Activities
Act, 1985 (for short, ?Sthe PASA Act??) detaining the detenue, as
‘bootlegger’ as defined under Section 2(b) of the PASA Act, as
illegal and violative of Articles 14, 19, 21 and 22 of the
Constitution of India.
As
stated in the order of detention and the grounds submitted thereto,
the detaining authority has relied upon registration of solitary
crime, being C.R. No.5263 of 2005, on 8.5.2005, at DCB Police
Station, for the offences punishable under Sections 65 A E, 81 and
116 of the Bombay Prohibition Act. The detaining authority has
explored the possibility of resorting to remedies under the ordinary
law, but, found that the prejudicial activities of the detenu can be
curtailed and prevented only by exercise of power under sub-section
(2) of Section 3 of the PASA Act. Considering over all facts of the
case, the detaining authority has passed the order of detention dated
1.6.2005.
Ms.
Banna Dutta, learned counsel appearing for the detenu has assailed
the order of detention contending that solitary incident 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. According to her submission,
there is no nexus between registration of crime and resultant effect
thereof on the public order or general health of public. She has
further submitted that the detaining authority has not applied his
mind to the vital facts and there was total non-application of mind
before recording the order of detention. In support of her
contention, she 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.
Mrs.
Hansa Punani, learned Assistant Government Pleader has submitted that
registration a crime at DCB Police Station would go to show that the
detenu had, in fact, indulged into such activities, which can be said
to be disturbing the public order. She further submitted that there
was sufficient material before the detaining authority to pass the
order of detention and 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 the solitary incident or instance in
question, as alleged, has not been shown as affecting the ‘public
order’ or likely to create public disturbance or prejudicial or
adverse to the maintenance of ‘public order’, and, therefore, the
continued detention of the detenu has not been shown to be
justifiable. It cannot be disputed that firstly, there must be cogent
material before the detaining authority, and secondly, there must be
material to show that the detaining authority has applied its mind to
the vital and important aspects and facts before reaching the
subjective satisfaction required under the law. The power to detain a
person under the PASA Act is not based on simple facts about
registration of crimes under the Bombay Prohibition Act or the
activities of bootlegging of the detenu. There has to be nexus and
link for such activities with disturbance of the public order. The
activities of the detenu must, in the backdrop of the facts, reflect
that such activities disturbed the even tempo or normal life of the
community in the locality or disturbed general peace and tranquility
or create a sense of alarm and insecurity in the locality. On a
careful perusal of the ground of detention order and relying upon the
the 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, in
my view, it cannot be said that the activities of the detenu are
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
1.6.2005 is quashed and set aside. The detenu, Prakashbhai Thakraram
Bishnoi 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.
(Anant S. Dave,
J.)
(swamy)
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