Gujarat High Court
Hassan Mohammed Yusuf Kurkur (Ghanchi) vs State Of Gujarat & 2 on 26 August, 2014
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/5549/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5549 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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HASSAN MOHAMMED YUSUF KURKUR (GHANCHI)
Versus
STATE OF GUJARAT & 2
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Appearance:
H N SEVAK, ADVOCATE for the Petitioner(
MS AMITA SHAH AGP for the Respondents
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 26/08/2014
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C/SCA/5549/2014 JUDGMENT
ORAL JUDGMENT
[1] By way of this petition, the detenue has challenged the order of detention dated 18.03.2014 passed by respondent No.2 herein under the provisions of sub-sec(2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as "PASA Act").
[2] Learned advocate, appearing for the petitioner detenue has invited my attention to the order of detention dated 18.03.2014, by which, the detenue was arrested and sent to Junagadh District Jail. The ground of detaining the accused is that three offences were registered against the petitioner under the provisions of sections 452, 380, 114, etc. of the Indian Penal Code; sections 5,8 and 10 of the Prevention of Cruelty to Animal Act, 1954; section 11 (a)(d)(e) (f)(h)
(k) of the Bombay Cattle Prohibition Act, 1960. He is, therefore, a "cruel person" as defined under Section 2(bbb) of the PASA Act. Learned advocate appearing for the petitioner has submitted that, except this solitary offence, 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 solitary offence registered against the petitioner, and in absence of any other material to show 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 the consequential order are vitiated.
[3] Learned AGP appearing for the State has opposed this petition.
Page 2 of 4C/SCA/5549/2014 JUDGMENT [4] Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of "cruel person" as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs 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)".
[5] It is clear from 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 habitual or repetitively involved in the offence.
[6] Under the circumstances, the subjective satisfaction that the petitioner is a cruel person on the basis of which he has been detained is vitiated.
[7] In view of the above facts and circumstances of the case, the petition is allowed. The impugned order of detention dated 18.03.2014 passed by respondent No.2 herein is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if he is not required to be detained in connection with any other case. Rule is made absolute accordingly. Direct Service is permitted.
(A.J.DESAI, J.)
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C/SCA/5549/2014 JUDGMENT
vijay
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