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SCA/516920/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5169 of 2009
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
==========================================
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 ?
==========================================
OSMANASHAH
MOHAMMADSHAH JALALI FAKIR - Petitioner(s)
Versus
STATE
OF GUJARAT, THRO' PRINCIPAL SECRETARY TO GOVT. OF GUJ. & 2 -
Respondent(s)
=========================================
Appearance :
MR
BM MANGUKIYA for Petitioner(s) : 1,
MR MR
MENGDEY, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1,
None for
Respondent(s) : 2 - 3.
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 23/06/2009
ORAL
JUDGMENT
By
this petition, which has been filed at the pre-execution stage, the
petitioner has challenged the validity of the order of preventive
detention passed by the respondent No.2 District Magistrate,
Rajkot in exercise of powers under sub-section (2) of Section 3 of
the Gujarat Preventive of Anti Social Activities Act, 1985 (the Act)
against the petitioner.
According
to the petitioner, the said order has been passed by the respondent
No.2 upon recording subjective satisfaction based on a single
offence stated to have been registered against the petitioner as
prohibition C.R. No.5384/2008 with Dhoraji Police Station for the
offences punishable under Sections 66(1)b, 65-A, E, 116-B and 81 of
the Bombay Prohibition Act, 1949. The petitioner has challenged the
said order of detention passed by the detaining authority mainly on
the ground that in respect of three other co-accused, namely,
Hasinaben, wife of the petitioner, Mustaq Umarbhai Saiyed Fakir and
Ismailbhai Kasambhai Sandhi, against whom similar orders of
detention had been passed, have not been confirmed by the Advisory
Board constituted under the Act, by giving an opinion that there are
no sufficient reasons to detain the detenue by way of preventive
detention and therefore, all the three detenues were enlarged by the
State Government. It is the case of the petitioner that in view of
the fact that, on identical facts, the Advisory Board has expressed
the opinion that the order of detention was not justified, the
respondents should be restrained from executing the order of
detention qua the present petitioner.
Strong
reliance is placed upon the decision of the Apex Court in case of
Alpesh Navinchandra Shah v. State of Maharashtra,
reported in (2007) 2 SCC 777 as well as the order dated 7th
January 2008 passed by a Division Bench of this Court rendered in
Letters Patent Appeal No.2149 of 2007 in case of State
of Gujarat v. Anup Vithalbhai Shah and others.
The
Apex Court, in the case of Pawan Bhartiya v. Union of India
and another, reported in (2003)11 SCC 479, in a case where
identical order of detention had been passed against the petitioner
as well as his brother and the petitioner’s brother had already been
released on the ground that there was no sufficient cause for
detention of the detenue under Section 3(1) of the COFEPOSA Act, and
the Government had accordingly revoked the detention order issued
against him after considering the report of the Advisory Board, the
Court held that the petitioner therein who was similarly situated,
was entitled to the same treatment.
The
Division Bench of this Court in the above cited decision has held
that when the facts were similar in the case of all four persons
against whom detention orders were passed and since the Advisory
Board had quashed the detention orders passed against two of the
accused persons, the same treatment should be given to the
petitioners appellants. The Court, therefore, set aside the
detention orders passed against the petitioners appellants
therein.
On
a perusal of the First Information Report in question on the basis
of which similar detention orders had been passed in case of the
three co-accused, it is apparent that the allegations against all
the co-accused are similar in nature. Hence, the petitioner herein
is similarly situated to all the other co-accused.
In
the aforesaid premises, examining the facts of the present case in
the light of the decisions cited hereinabove, this Court is of the
view that considering the fact that the petitioner is similarly
situated to the other co-accused, coupled with the fact that the
Advisory Board has held that there were no sufficient reasons for
detaining the other co-accused, the order of detention against the
petitioner herein would also not be sustainable on the same grounds.
Ordinarily, this Court would not intervene against the an order of
preventive detention at the pre-execution stage. But, in the facts
and circumstances of the present case, it would not be just and
proper to permit the respondents to execute the order of detention
against the petitioner when similar orders of detention have already
been revoked by the Advisory Board.
In
view of the above discussion, the petition succeeds and is,
accordingly, allowed. The respondent No.1 is directed to revoke the
impugned order of detention dated 19th March 2009 passed
against the petitioner by the respondent No.2 in exercise of powers
under the Gujarat Preventive of Anti Social Activities Act, 1985
pursuant to the First Information Report lodged against the
petitioner vide Dhoraji Police Station Prohibition C.R.
No.5384/2008.
Rule
is made absolute with no order as to costs.
[HARSHA
DEVANI, J.]
parmar*
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