Gujarat High Court
Manish Babubhai Tank-Kadiya Thro ... vs State Of Gujrat Through The on 16 January, 2013
Author: A.J.Desai
Bench: A.J.Desai
MANISH BABUBHAI TANK-KADIYA THRO BROTHER HARSHADBHAI B....Petitioner(s)V/SSTATE OF GUJRAT THROUGH THE DEPUTY SECRETARY C/SCA/16016/2012 JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16016 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE A.J.DESAI sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ MANISH BABUBHAI TANK-KADIYA THRO BROTHER HARSHADBHAI B....Petitioner Versus STATE OF GUJRAT THROUGH THE DEPUTY SECRETARY & 2....Respondents ================================================================ Appearance: MS KRISHNA U MISHRA, ADVOCATE for the Petitioner. MS HANSA PUNANI, AGP for the Respondent No.3. RULE SERVED BY DS for the Respondent Nos. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 16/01/2013 ORAL JUDGMENT[1]
This petition is directed against the order of detention dated 04/11/2012 passed by respondent No.2 herein The Commissioner of Police, Rajkot City in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short the PASA Act ) by detaining the detenue as a bootlegger as defined under Section 2(b) of the Act. 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 pending against the detenue. The case is registered under the provisions of the Bombay Prohibition Act.
[2] Ms.Krishna Mishra, learned advocate for the detenue submits that registration of FIR itself cannot lead to disturbance of even tempo of public life and therefore the public order. The order of detention is assailed by the detenue on various grounds mentioned in the memo of the petition. However, learned counsel for the detenue submits that, except FIR registered under the Bombay Prohibition Act, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenue is a 'bootlegger' within the meaning of Section 2(b) of the Act and required to be detained as the detenue's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenue has placed reliance on judgment of the Apex Court in the case of Piyush Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme Court 491 and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police) which would squarely help the detenue.
[3] Ms.Hansa Punani, learned Assistant Government Pleader submitted that registration of FIR would go to show that the detenue had, in fact, indulged into such activities, which can be said to be disturbing the public health and public order and in view of sufficient material before the detaining authority to pass the order of detention, no interference is called for by this Court in exercise of its power under Article 226 of the Constitution of India.
[4] Having heard the rival submissions of the parties and perused the record of the case, I am of the view that FIR registered under the Bombay Prohibition Act alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. On careful perusal of the material available on record and the ratio laid down by the Apex Court in the case of Piyush Kantilal Mehta (supra) and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police), I am of the view that the activities of the detenue cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside.
[5] In the result, the petition is allowed. The impugned order of detention dated 04/11/2012 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.
sd/-
[A.J. DESAI, J.] *dipti Page 5 of 5