Gujarat High Court
Shobhanaben vs State on 17 April, 2012
Author: Md Shah
Bench: Md Shah
Gujarat High Court Case Information System
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SCA/2859/2012 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2859 of 2012
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
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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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SHOBHANABEN
SURESHBHAI KAILASHBHAI KAHAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MM TIRMIZI for
Petitioner(s) : 1,
MS MAITHLI MEHTA, AGP for Respondent(s) :
3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/04/2012
ORAL
JUDGMENT
1. This petition is directed against the order of detention dated 23/12/2011 passed by respondent No.2, in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short" the Act) by detaining the detenu as a "bootlegger" as defined under Section 2(b) of the Act. Along with the order of detention, the petitioner is also served with the grounds of detention. In the grounds of detention, there is a reference to three criminal cases pending against the petitioner. The cases is registered under the provisions of the Bombay Prohibition Act. It is alleged that the petitioner is dealing in country liquor.
2. Learned advocate for the detenu 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 detenu on various grounds mentioned in the memo of the petition. However, learned counsel for the detenu submits that, except FIRs registered under the Bombay Prohibition Act, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenu is a 'bootlegger' within the meaning of Section 2(b) of the Act and required to be detained as the detenu's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenu 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 detenu.
3. Learned Assistant Government Pleader submitted that registration of FIR would go to show that the detenu 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 FIRs 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 detenu 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, this Special Civil Application is allowed. The order of detention dated 23/12/2011 is hereby quashed and set aside. The detenu, is ordered to be set at liberty forthwith if the detenu is not required in connection with any other case. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(M.D.SHAH, J.) (ila) Top