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SCA/271/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 271 of 2011
=========================================================
RAJUBHAI
CHHANABHAI RATHOD - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MS
BANNA S DUTTA for MR AR SHAIKH
for Petitioner(s) : 1,
MS
VS PATHAK, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1,
3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 04/04/2011
ORAL
ORDER
Heard
learned Counsels for the parties.
This
petition is directed against the order of detention dated 07.12.2010
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 the two incidents
alleged against the detenu are not of such a 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. She has further
submitted that the detaining authority has not applied his mind to
the vital facts and there was non-application of mind before
recording the order of detention. In support of the above
contention, the learned counsel 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
and
Kanuji
S. Zala vs. state of Gujarat and others, 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, indicating that the detenue is in the 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 Counsels 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 two FIRs 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 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 the 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 the 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 dated 07.12.2010 passed by the 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.
Sd/-
(Anant S. Dave, J.)
Caroline
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