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Gujarat High Court

Mohammad Tofik Alias Maya Gulamjilani ... vs State Of Gujarat & on 1 May, 2015

Author: K.S.Jhaveri

Bench: Ks Jhaveri

         C/SCA/3302/2014                               JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              SPECIAL CIVIL APPLICATION NO. 3302 of 2014



FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE KS JHAVERI

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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 or any order made thereunder ?

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    MOHAMMAD TOFIK ALIAS MAYA GULAMJILANI SHAIKH....Petitioner(s)
                            Versus
             STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR AFTABHUSEN ANSARI, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 2
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         CORAM: HONOURABLE MR.JUSTICE KS JHAVERI

                           Date : 01/05/2015


                           ORAL JUDGMENT

C/SCA/3302/2014 JUDGMENT

1. The petitioner is apprehending his detention pursuant to FIR being C.R.No.II-3004/2014 registered with D.C.B. Police Station, Ahmedabad under Sections 25(1) B A of the Arms Act. Petitioner is one of the two accused, against whom such FIR was registered and he has preferred present petition at pre- execution stage to avoid his detention.

2. If we peruse the FIR, the basic allegation against the petitioner is to the effect that he is involved in a heinous crime and injured some people by deadly weapons. Learned advocate for the petitioner has submitted that a bare perusal of the FIR would make it crystal clear that there is no prima facie case against the petitioner and the petitioner is wrongly implicated in the crime in question. He submitted that on the basis of only one criminal case registered against the detenu, he cannot be detained.

2.1 In support of his case, learned advocate for the petitioner has placed reliance on a decision of this Court passed in the case of "Sohanlal Surajram Visnoi Vs. State of Gujarat and Ors." reported in 2004(2)GLR 1051 wherein it was held as under:

"It may be noted that the contention advanced on behalf of the petitioners that no preventive detention order can be recorded in a solitary incident or instance or offence cannot be accepted in toto. The detaining authority can pass the order of detention even on the basis of a solitary incident or instance, provided there is justifiable subjective satisfaction on objective material and consideration that such incident or offence is likely to create disturbance of "Public Order". Emphasis is laid on "Public Order"

C/SCA/3302/2014 JUDGMENT and not on "Law and Order" which belongs to the realm of general law. After having taken into account the statutory definitions of the persons branded as "bootlegger" or "dangerous person" under the P.A.S.A. Act, and detailed factual matrix of each case, the solitary incident or instance in question in these petitions has not been shown or spelt out from the record as affecting the "Public Order" or likely to create public disturbance or prejudicial or adverse to the maintenance of "Public Order", and therefore, the continued detention of the detenus in each case has not been shown to be justifiable, ..."

2.2 He has further placed reliance on a decision of this Court passed in the case of " Sandip Omprakash Gupta v. State of Gujarat & Ors" reported in 2004(1)GLR 864 wherein it was held as under, "There is only one registered offence under the Bombay Prohibition Act, which obviously, cannot disturb the peace of public tempo or place of public order, and therefore, it canot be considered to be prejudicial activities in any manner which may not prompt to say, that it would have disturbed the public peace or place of public order in the society. The allegation against the petitioner that he is selling liquor in the society, but there is nothing compelling to the persons in the society to buy liquor from the petitioner. Except this, no other activity which could disturb the public peace or the public order in the society is noticed or recorded against the petitioner. Therefore, such activity which is said to be have been carrying out by the petitioner, can normally be covered by the ordinary law to prevent him and it cannot be considered beyond capacity of ordinary law to deal with him."

3. On the contrary, learned A.G.P. for respondent submitted that no case is made out calling for interference of this Court.

C/SCA/3302/2014 JUDGMENT

4. As a result of hearing and perusal of the record it appears that in this case the only material is one criminal case registered against the detenu and on the basis of that it cannot be said that the activity of the detenu has become a threat to the maintenance of 'public order' and 'public health'. Mere involvement of detenu in such activities or a criminal case being lodged against him may not amount to dangerous activity by petitioner-detenu and mere mention of them unless supported by any evidence cannot be said to be material for the purpose of arriving at subjective satisfaction that the activity of the detenu is prejudicial to the maintenance of 'public order' and 'public health'.

4.1 I have considered factual and legal aspects emerging from the record of the petition and considered the rival submissions and the facts of the case and also considered the judgment of this Court in the case of Sohanlal Sujaram Visnoi (Supra) and Sandip Gupta(supra). In view of the facts and circumstances of the present case and also ratio laid down in the cases mentioned above, the petition is required to be allowed.

5. In the result, this petition is allowed. The impugned action of the respondent authorities seeking to detain the petitioner under the provisions of PASA Act in connection with the aforesaid FIR is against the principles of natural justice and the same is not permitted. The petitioner shall not be detained in connection with the aforesaid FIR. Rule is made absolute. Direct service is permitted.

         C/SCA/3302/2014                  JUDGMENT




                                        (K.S.JHAVERI, J.)
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