Divyeshbhai @Devu Jaysinghbhai ... vs State Of Gujarat & 2 on 17 December, 2014

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Gujarat High Court

Divyeshbhai @Devu Jaysinghbhai ... vs State Of Gujarat & 2 on 17 December, 2014

Bench: A.J.Desai

       C/SCA/13449/2014                                   JUDGMENT




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 13449 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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     DIVYESHBHAI @DEVU JAYSINGHBHAI DHODIYA....Petitioner(s)
                           Versus
             STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MS SUBHADRA G PATEL, ADVOCATE for the Petitioner(s) No. 1
MR VANDAN BAXI AGP for the Respondents
================================================================

        CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

                           Date : 17/12/2014


ORAL JUDGMENT

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C/SCA/13449/2014 JUDGMENT

1. Heard Ms. Subhadra G. Patel, learned Advocate for the petitioner and Mr. Vandan Baxi, learned AGP for the respondents.

2. This petition is directed against the order of detention dated 16.9.2014 passed by the respondent No.2 in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "the Act") by detaining the detenue as a "bootlegger" as defined under Section 2(b) of the Act.

3. Learned counsel for the detenue submits that order of detention impugned in this petition deserves to be quashed and set aside on the ground that the incidents alleged against the detenu are not of such magnitude and intensity as to have the effect of disturbing the public order so as to pass an order under Section 3(1) of the PASA Act. He has further submitted that the detaining authority has not applied his mind to the vital facts and there was nonapplication of mind before recording the order of detention. In support of the above contention, the learned counsel has relied upon the following caselaws:

i. Judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram: M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent Appeal No.223 of 2000 in Special Civil Application No.554 of 2000 (Ashok Balabhai Makwana vs. State of Gujarat); ii. Piyush Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme Court 491 iii.Om Prakash vs. Commissioner of Police and others, JT 1989 (4) SC 177 iv.Kanuji S. Zala vs. state of Gujrat ando thers, 1999 (2) GLH 415.

4. Learned AGP for the respondentState supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue, indicating that the detenue is in the habit of Page 2 of 4 C/SCA/13449/2014 JUDGMENT indulging into activities as defined under Section 2(b) of the Act and, considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court.

5. Having heard learned counsel for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the four FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of Section 2(b) of the Act unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing the public order at the instance of such person. In view of the ratio laid down by the Hon'ble Supreme Court in the decisions cited by the learned counsel for the petitioner, the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of the public order and at the most fall under the maintenance of "law and order".

6. In the result, this Special Civil Application is allowed. The impugned order 16.9.2014 of detention 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. Rule is made absolute accordingly. Direct service is permitted.



                                                                       (A.J.DESAI, J.)


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          C/SCA/13449/2014                 JUDGMENT


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