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SCA/9453/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9453 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
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 ?
=========================================
ABDUL
SATTAR JUMMEKHA MEVALI
Versus
STATE
OF GUJARAT & 2
=========================================
Appearance
:
MR MM TIRMIZI for Petitioner(s)
: 1,
MR JANAK RAVAL AGP for
Respondents
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/08/2010
ORAL
JUDGMENT
1. By
filing present petition the petitioner, under Article 226 of the
Constitution of India, the petitioner has prayed to quash and set
aside the order of detention dated 26.5.2010 passed, against the
petitioner, by the respondent No.2 the Commissioner of Police,
Ahmedabad, in exercise of power under sub-section (2) of Section 3 of
the Gujarat Prevention of Anti Social Activities Act, 1985 (for short
PASA Act ). The detenu is branded as dangerous person .
2. Heard
the learned Advocate for the petitioner and learned AGP for the
respondents. No Affidavit in reply is filed by the respondents
controverting the averments made by the petitioner.
3. The
detenu came to be detained as dangerous person on his
involvement in the offence being CR No. II-3098 of 2010 registered
with Danilimda Police Station, Ahmedabad.
4. It
has been submitted by the learned Counsel for the petitioner that the
allegations made against the detenu are not correct; that the
material collected by the detaining authority and looking to the
statement recorded by the detaining authority it cannot be said that
the alleged activities of the petitioner would fall within the
purview of dangerous person
5. I
have gone through the grounds of detention and considered the
arguments advanced by the learned Counsel for the petitioner as well
as the learned A.G.P.
6. The
Court is of the opinion that there is much substance in the arguments
advanced by learned Counsel for the petitioner. The detaining
authority has placed reliance on the aforesaid registered offences
and statements of witnesses. After recording the subjective
satisfaction about the detenu being a dangerous person and with a
view to preventing his from acting in a manner prejudicial to the
maintenance of public order, the impugned order of detention was
passed by the detaining Authority.
7. Except
the general statement, there is no material on record which shows
that the detenue is acting in such a manner which is dangerous to the
public order. There are number of decisions of this Court as well as
the Hon’ble Apex Court on the point of relying on this point. In view
of the ratio laid down by the Hon’ble Supreme Court in the case of
(i) DISTRICT COLLECTOR, ANANTHAPUR v/s. V. LAXMANAN, reported
in (2005) 3 SCC 663; (ii) AMANULLA KHAN KUDEATALLA KHAN
PATHAN v/s. STATE OF GUJARAT, reported in AIR 1999 SC 2197;
and (iii) MUSTAKMIYA JABBARMIYA SHAIKH v/s. M.M. MEHTA,
reported in (1995) 3 SCC 237 the Court is of the opinion that
the activities of the detenu cannot be said to be dangerous to the
maintenance of pubic order. In the case of ASHOKBHAI JIVRAJ @
JIVABHAI SOLANKI v/s. POLICE COMMISSIONER, Surat, reported in 2001
(1) GLH 393, having considered the decision of the Hon’ble Apex
Court in the case of Ram manohar Lohia v/s. State of Bihar,
reported in AIR 1966 SC 740, this Court held that the cases
wherein the detention order are passed on the basis of the statements
of such witness fall under the maintenance of law and order and
not public Order .
8. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention, the detaining authority must come to a definite
findings that there is threat to the ‘public order’ and it is very
clear that the present case would not fall within the category of
threat to a public order. In that view of the matter, when the order
of detention has been passed by the detaining authority without
having adequate grounds for passing the said order, cannot be
sustained and, therefore, it deserves to be quashed and set aside.
9. In
the result, this petition is allowed. The
impugned order of detention dated 26.05.2010 passed by the Police
Commissioner, Ahmedabad is 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. Direct service is permitted.
(
Z. K. SAIYED, J. )
vijay
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