Gujarat High Court
Abdulmunaf Abdulkadar Shaikh Thro ... vs State Of Gujarat Through on 21 January, 2013
Author: A.J.Desai
Bench: A.J.Desai
ABDULMUNAF ABDULKADAR SHAIKH THRO BROTHER IN LAW NASIRMIA....Petitioner(s)V/SSTATE OF GUJARAT THROUGH THE SECRETARY C/SCA/15815/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 15815 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 ================================================================ ABDULMUNAF ABDULKADAR SHAIKH THRO BROTHER IN LAW NASIRMIA....Petitioner Versus STATE OF GUJARAT THROUGH THE SECRETARY & 2....Respondents ================================================================ Appearance: MR ATIT THAKORE FOR MR AR SHAIKH, ADVOCATE for the Petitioner. MR NIRAJ ASHAR, AGP for the Respondent No.3. RULE SERVED BY DS for the Respondent Nos. 1 2. ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 21/01/2013 ORAL JUDGMENT
1. By way of this petition, the detenue has challenged the order of detention dated 05/11/2012 passed by respondent No.2 herein The Commissioner of Police, Ahmedabad City 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, Mr.Atit Thakore, appearing for the petitioner-detenue has invited my attention to the order of detention dated 05/11/2012, by which, the detenue was arrested and sent to Jamnagar Jail. The ground of detaining the accused is that one offence was registered against the petitioner under the provisions of Sections 5, 6, 6(a)(1), 8(1)(3) & 10 of the Gujarat Animals Preservation Act, 1954; Section 11(a) of the Prevention of Cruelty to Animals Act, 1960 and Sections 335 & 336 of the B.P.M.C. Act and Section 119 of the G.P. Act. 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 one 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 Mr.Niraj Ashar, appearing for the State has opposed this petition.
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 05/11/2012 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 4 of 4