C/SCA/13488/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13488 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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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 ?
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KANAIYA LAL MULJIBHAI BHIMJI PATEL....Petitioner(s)
Versus
COMMISSIONER OF POLICE & 2....Respondent(s)
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Appearance:
MR CHETAN B RAVAL, ADVOCATE for the Petitioner(s) No. 1
MR KKASHYAP PUJARA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2 - 3
RULE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 10/12/2014
ORAL JUDGMENT
1 This petition is directed against the order of detention dated
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06.09.2014 passed by respondent No.1The Commissioner of Police,
Ahmedabad City, in exercise of powers conferred under Section 3(2) of
the Gujarat Prevention of Anti Social Activities Act, 1985 (in short the
PASA Act) by detaining the detenue as defined under Section 2(g) of the
Act as immoral traffic offender. Along with the order of detention, the
detenue is also served with the grounds of detention. In the grounds of
detention, there is a reference to one criminal case registered against the
detenue before the Odhav Police Station, Ahmedabad, being CR No.II
3364/2014 for the offences punishable under Sections 3, 4, 5, 9 of the
Immoral Traffic (Prevention) Act. The case is registered under the
provisions of the Prevention Of Immoral Traffic Act, 1956.
2 Learned Advocate Mr. C.B. Raval, for the detenue submits that,
due to oversight, wrong facts of another case are wrongly crept in the
petition and requested to the Court to ignore the said facts to consider
the oral submission made before the Court in the interest of justice as
the detenue is in custody from the date of his arrest in connection with
the present offence. Learned Advocate further regrets for the incorrect
facts mentioned in the petition and the inconvenience caused to the
Court. He further submits that the order of detention impugned in this
petition deserves to be quashed and set aside on the ground that
registration of solitary complaint for the offence punishable under
Sections 4, 5, 6, and 9 of the Immoral Traffic (Prevention) Act, 1956 by
itself cannot bring the case of the detenue within the purview of
definition under Section 2(g) of the Act. Learned Advocate for the
detenue further submitted that illegal activity carried out as alleged
cannot have any nexus or bearing with maintenance of public order and
at the most it can be said to be breach of law and order. It is further
submitted that, except, statements of witnesses, registration of FIR and
panchnama, no other relevant or cogent material is available on record
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connecting the alleged antisocial activities of the detenue with breach of
public order.
3 Mr. C.B. Raval, learned Advocate for the detenue further submits
that it is not possible to hold in the facts of the present case that the
activities of the detenue with reference to the criminal case had affected
even tempo of public life of the people at large or that on the basis of the
criminal case, the detenue had put the entire social apparatus in
disorder, making it difficult for whole system to exist as a system
governed by rule of law by disturbing public order.
4 Mr. Kkashyap Puara, 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(g) 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. However, no
affidavitinreply is filed on behalf of any of the respondents.
5 Having heard the submissions of the parties and considering the
request made by the learned Advocate for the petitioner with regard to
the wrong facts mentioned in the petition and also consider the
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.
the Act, 1956 and other relevant penal laws are sufficient enough to take
care of the situation and that the allegations as have been levelled
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against the detenue, cannot be said to be germane for the purpose of
bringing the detenue within the meaning of Section 2(5) 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, it cannot be said that, the detenue is a person within the
meaning of Section 2(g) of the Act. Except general statements, there is
no material on record which shows that the detenue is acting in such a
manner which is dangerous to the public order.
6 In view of the above, I am inclined to allow this petition because
simplicitor registration of FIR by itself cannot have any nexus with the
breach of maintenance of public order and the authority can have
recourse under the Act, 1956 and no other relevant or cogent material
exists for invoking powers under Section 3(1) of 3(2) of the Act. That
the State Government has not filed affidavitinreply to this petition.
7 In the result, this Special Civil Application is allowed. The order of
detention dated 06.09.2014 passed by respondent No.1The
Commissioner of Police, Ahmedabad City, is hereby quashed and set
aside. The detenue is ordered to be set at liberty forthwith if the detenue
is not required in connection with any other case. Rule is made absolute
to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.)
chandresh
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