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SCA/12504/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12504 of 2010
=============================================
SANJAY
@ VIJAY S/O JORSANG GHELDA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=============================================
Appearance
:
MR AR SHAIKH for Petitioner(s)
: 1,
MR KARTIK PANDYA ADDL. GOVERNMENT PLEADER for Respondent(s) :
1 - 3.
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 01/12/2010
ORAL
ORDER
1. Heard
learned counsel for the parties.
2. This
petition is directed against the order of detention dated 16.8.2010
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.
3. 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
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. He 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
Kanuji
S. Zala vs. state of Gujrat ando thers, 1999 (2) GLH 415.
4. 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.
5. 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 four 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”.
6. In
the result, this Special Civil Application is allowed. The impugned
order of detention dated 16.8.2010 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.
(ANANT S. DAVE, J.)
//smita//
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