Taufiq Safi Sherkha Multani (Musalman) vs Collector And The District Magistrate & ... on 17 April, 2015

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Gujarat High Court

Taufiq Safi Sherkha Multani (Musalman) vs Collector And The District Magistrate & ... on 17 April, 2015

Bench: M.R. Shah

        C/SCA/3726/2015                                JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             SPECIAL CIVIL APPLICATION NO. 3726 of 2015



FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH
==========================================================

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 or any order made thereunder ?

==========================================================
      TAUFIQ SAFI SHERKHA MULTANI (MUSALMAN)....Petitioner(s)
                            Versus
    COLLECTOR AND THE DISTRICT MAGISTRATE & 2....Respondent(s)
==========================================================
Appearance:
MR KASHYAP R KODEKAR, ADVOCATE for the Petitioner(s) No. 1
MR TIRTHRAJ PANDYA AGP for the Respondent(s) No. 2 - 3
RULE SERVED BY DS for the Respondent(s) No. 1 - 2
==========================================================

        CORAM: HONOURABLE MR.JUSTICE M.R. SHAH

                           Date : 17/04/2015


                           ORAL JUDGMENT

1.00. By way of this petition, the petitioner-detenu has Page 1 of 5 C/SCA/3726/2015 JUDGMENT challenged the order of detention dated 12/11/2014 passed by the detaining authority in exercise of powers conferred on him under sub-section (1) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, 'the PASA Act') and has also prayed for an order to set him free from detention.

2.00. Mr.Kodekar, the learned advocate appearing on behalf of the petitioner-detenu has invited the attention of the Court to the order of detention dated 12/11/2014 , by which the petitioner-detenu was arrested. The ground for detaining the petitioner-detenu has been shown to be the offences which were registered with the Idar Police Station, vide I-CR No.31 of 2014 for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.39 of 2014 registered with the Idar Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.52 of 2014 registered with the Idar Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.54 of 2014 registered with the Idar Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.60 of 2014 registered with the Idar Police Station for the offence punishable under Section 379 of Indian Penal Code, I-CR No.204 of 2014 registered with the Himmatnagar Town Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.58 of 2014 registered with the Himmatnagar 'A' Division Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.14 of 2014 registered with the Jadar Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.43 of 2014 registered with the Gambhoi Police Station Page 2 of 5 C/SCA/3726/2015 JUDGMENT for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.38 of 2014 registered with the Prantij Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.72 of 2013 registered with the Prantij Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.35 of 2013 registered with the Talod Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.44 of 2014 registered with the Talod Police Station for the offence punishable under Section 379 of the Indian Penal Code, I-CR No.5 of 2014 registered with the Khedbrahmma Police Station for the offence punishable under Section 379 of the Indian Penal Code.

3.00. Mr.Kodekar, learned advocate appearing on behalf of the petitioner-detenu has submitted that except this these offences, there is no material with the detaining authority to detain the petitioner under the provisions of the PASA Act. It is submitted that the order is vitiated because only on the basis of the offences registered against the petitioner, and in absence of any other material to show the involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a 'cruel person'. The definition of 'cruel person' requires habitual involvement and, therefore, the subjective satisfaction and consequential order are vitiated.

4.00. On the other hand, this petition has been vehemently opposed by Mr.Pandya, the learned AGP appearing for the State. According to Mr.Pandya, there are sufficient grounds to issue the detention order. Learned AGP Page 3 of 5 C/SCA/3726/2015 JUDGMENT has submitted that the detention order was issued after careful consideration of the materials available before the detaining authority.

5.00. Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of 'cruel person' as provided in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which reads as under:-

"2(bbb) 'cruel person' means, a person who either by himself or as member or leader of a gang habitually commits or attempts to commit abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom.LXXII of 1954)."

6.00. It is clear from the reading of the definition that the person to be branded as a 'cruel person' has to be either a member or leader of a gang habitually committing or attempting to commit or abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term 'habitually' examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring one offence registered against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitually or repetitively involved in the offence.

Page 4 of 5

C/SCA/3726/2015 JUDGMENT 7.00. Under the circumstances, the subjective satisfaction that the petitioner is a 'cruel person' on the basis of which he has been detained is vitiated.

8.00. In the result, this petition is allowed. The impugned order of detention dated 12/11/2014 passed by the detaining authority is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith if not required in any other case. Rule is made absolute accordingly.

Direct service is permitted.

(M.R.SHAH, J.) Rafik Page 5 of 5

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