Gujarat High Court
Nileshbhai @ Nilu Jayantilal Modi Thru ... vs State Of Gujarat on 22 October, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/8936/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8936 of 2020
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NILESHBHAI @ NILU JAYANTILAL MODI THRU HIS COUSIN BROTHER
JIGNESHBHAI LAXMANBHAI MODI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR S D MANSURI(7509) for the Petitioner(s) No. 1
MR BHARGAV PANDYA, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 22/10/2020
ORAL ORDER
1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner, through Jigneshbhai Laxmanbhai Modi, has prayed for quashing and setting aside the order of detention dated 21.7.2020 passed by respondent No.2 under provisions of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as 'the Act of 1985').
2. The petitioner has challenged the detention order dated 21.7.2020 mainly on the following grounds:
2.1 That respondent No.2, while passing the order dated 21.7.2020, has relied upon a solitary first information report registered against the petitioner with Singalpor-Dabholi Police Station, Surat City for the offence under provisions of the Gujarat Prohibition Act; however, neither the petitioner was present at the place of the incident nor any recovery or discovery has been found from the petitioner. Further, the petitioner has not been attributed any role in the first information report.Page 1 of 6 Downloaded on : Sat Oct 24 04:24:21 IST 2020 C/SCA/8936/2020 ORDER
2.2 That as is clear from the detention order, the detaining authority has considered past detention orders passed against the petitioner and the fact of same having been quashed and set aside by this Court. In view of well settled proposition of law, no reliance could have been placed on the said orders.
2.3 That the order dated 21.7.2020 is not in sync with the provision of section 14 of the Act of 1985 inasmuch as, section 14 provides for maximum period, for which the detenue may be detained in pursuance of any detention order. The order does not specify the period of detention.
2.4 That the petitioner is detained as a bootlegger under section 2(b) of the Act of 1985; however, the detaining authority has failed to substantiate the alleged anti social activity of the detenue adversely affecting or likely to affect the maintenance of public health and peace on the basis of solitary offence.
On the above referred grounds, the petitioner has preferred present petition with the aforementioned prayer.
3. Mr. S.D. Mansuri, learned advocate for the petitioner submitted that the reference of the orders of detention passed earlier and orders having been quashed and set aside by this Court, is misplaced. The said issue is squarely covered by the judgment dated 16.12.1999 rendered in Special Civil Application No.3817 of 1999, wherein this Court has in para 11, while referring to the earlier judgment in the case of Chhagan Bhagwan Kahar vs. State of Gujarat, reported in 1993 (2) GLR 1659, held that a fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari, the ground of the said order should not be taken into consideration, either as a whole or in part, even along with fresh grounds of detention for Page 2 of 6 Downloaded on : Sat Oct 24 04:24:21 IST 2020 C/SCA/8936/2020 ORDER drawing the requisite subjective satisfaction to pass fresh order because once the Court strike down an earlier order by issuing Rule, it nullifies the entire order. It has been observed that the detaining authority, therefore, cannot consider the fact of the earlier detention orders and the activities on which such orders were passed once they are struck down by court. It is, thus, submitted that the order dated 21.7.2020 deserves to be quashed and set aside on this ground alone.
4. It is further submitted that as is clear from the detention order dated 21.7.2020, no time limit is provided as required under section 14 of the Act of 1985 inasmuch as, the same is missing. On this count as well, the order dated 21.7.2020 deserves to be quashed and set side. Reliance is placed on the order dated 10.6.2020 rendered in Special Civil Application No.7219 of 2020, wherein this Court, while allowing the writ petition, has quashed the detention order, observing that section 14 of the Act of 1985 puts a maximum cap of detention of one year and thereby, the authority must apply its mind specifying the period of detention which would serve the purpose. Non-specification of the period would tantamount to non-application of mind by the detaining authority.
5. It is submitted that this Court in the judgment dated 19.6.2020 rendered in Special Civil Application No.1083 of 2020, has quashed the order of detention on the ground that the detaining authority has not considered 18 antecedents registered against the petitioner while passing the order, but it has arrived at subjective satisfaction only on the basis of solitary offence. The Court has further observed that the detaining authority has narrated 18 offences in the detention order only for the purpose of knowledge of the petitioner and for not any other purpose. It is submitted that this Court quashed the detention order only on the ground that though the offences were referred, however, the Page 3 of 6 Downloaded on : Sat Oct 24 04:24:21 IST 2020 C/SCA/8936/2020 ORDER detaining authority could not satisfy test of arriving at a subjective satisfaction on the basis of objective fact. It is, thus, submitted that on all the three counts, the order dated 21.7.2020 deserves to be quashed and set aside.
6. Mr. Bhargav Pandya, learned Assistant Government Pleader, though has supported the detention order dated 21.7.2020, however, has not been able to dispute the aforesaid propositions of law and application thereof to the facts of the present case.
7. Heard Mr. S.D. Mansuri, learned advocate for the petitioner and Mr.Bhargav Pandya, learned Assistant Government Pleader for the respondent State, through video conferencing.
8. Pertinently, the detaining authority, after referring to the registration of the first information report with Singalpor-Dabholi Police Station, Surat City for the offence under provisions of the Gujarat Prohibition Act, has also referred to various detention orders passed during the years 2001 to 2016 as well as the orders passed by this Court quashing the detention order. This Court in the judgment in the case of Jabbarkhan Azadkhan Pathan vs. State of Gujarat, while referring to the earlier judgment in the case of Chhagan Bhagwan Kahar (supra), has in para 11 observed thus:
"11. Now before going through the factual aspects for deciding whether earlier detention orders were considered or not, let us examine the legal proposition in this regard. If a reference is made to the decision in the case of Chhagan Bhagwan Kahar (supra) it is clearly stated in para 12 that a fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari, the ground of the said order should not be taken into consideration, either as a whole or in part, even along with fresh grounds of detention for drawing the requisite subjective satisfaction to pass fresh order because once the Court strike down an earlier order by issuing Rule, it nullifies the entire order . The detaining authority therefore cannot consider the fact of earlier detention orders and the activities on which such orders were passed once they are struck down by court."Page 4 of 6 Downloaded on : Sat Oct 24 04:24:21 IST 2020 C/SCA/8936/2020 ORDER
9. The aforesaid principle laid down by this Court applies on all fours to the facts of the present case inasmuch as, the detaining authority has, while passing the order, considered the orders of detention as well as the orders passed by this Court quashing the orders of detention. Clearly, when the detention orders were quashed and set aside by this Court by exercising extraordinary jurisdiction, the detention orders ought not to have been forming part of the order of detention. Therefore, it was impermissible to the detaining authority to have referred to or considered the earlier detention orders and the activities on which such orders were passed once they were quashed and set aside by this Court. Therefore, the order dated 21.7.2020 deserves to be quashed and set aside.
10. Evidently, the order dated 21.7.2020 is not carrying any stipulation as envisaged under section 14 of the Act of 1985. The said order is not in sync with the provision of section 14 of the Act of 1985 which puts a maximum cap of detention of one year. Non-stipulation of the detention period clearly concludes that there is a non-application of mind on the part of respondent No.2 while passing the order. On this count as well, the order dated 21.7.2020 deserves to be quashed and set aside.
11. In view of the above, I am inclined to allow this petition inasmuch as simpliciter registration of the first information report by itself cannot have any nexus with the breach of maintenance of public order and authority cannot have recourse under the Act of 1985 and no other relevant cogent material exists for invoking power under section 3(2) of the Act of 1985. Furthermore, the detaining authority has referred to the earlier orders of detention passed against the detenue, such reference is against the law laid down in the judgment referred to in para 8 of this order. Besides, the order dated 21.7.2020, as required under section 14 of the Act of 1985, does not provide for the period of detention to be Page 5 of 6 Downloaded on : Sat Oct 24 04:24:21 IST 2020 C/SCA/8936/2020 ORDER served by the petitioner-detenue. Thus, on all the aforesaid three counts, the order dated 21.7.2020 deserves to be quashed and set aside and is hereby quashed and set aside.
12. In the result, the petition is allowed and the impugned order of detention No. PCB/PASA/DTN/196/2020 dated 21.7.2020 passed by respondent No.2 is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case.
13. Rule is made absolute accordingly.
14. The Registry is directed to communicate this order to the concerned authority through fax / e-mail.
(SANGEETA K. VISHEN, J) BHARAT/MARY VADAKKAN Page 6 of 6 Downloaded on : Sat Oct 24 04:24:21 IST 2020