IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9875 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ?
========================================================= JIGNESH @ JITU BHIKHUBHAI SARPADADIYA (BAVAJI) -
Petitioner(s) Versus POLICE COMMISSIONER RAJKOT CITY & 2 - Respondent(s) ========================================================= Appearance :
MR ASHISH M DAGLI for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2.
MR DHARMESH GURJAR ASST GOVERNMENT PLEADER for Respondent(s) : 2-3.
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CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 03/08/2012 ORAL JUDGMENT
[1] This petition is directed against the order of detention dated 24.05.2012 passed by respondent No.1, 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 “property grabber” as defined under Section 2(h) 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 one criminal case pending against the petitioner. The case is registered under the provisions of the Indian Penal Code. It is alleged that the petitioner tried to enter into transaction of private land and tried to grab the property.
[2] It is submitted by learned advocate for the petitioner that single offence is registered against the petitioner. 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 FIR registered under the Indian Penal Code, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenu is a 'property grabber' within the meaning of Section 2(h) of the Act and required to be detained as the detenu's activities are prejudicial to the maintenance of public health and public order.
[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 FIR registered under the Indian Penal Code 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 considering 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] The land grabbing incident would not be classified to be any danger or imminent danger to public order situation nor can it be so classified without their being any cogent material on record. In the instant case, there appears to be none. Hence, order appears to be passed without application of mind.
[6] In the result, this petition is allowed. The order of detention dated 24.05.2012 passed by authority functioning under respondent No.1 i.e. Police Commissioner is quashed and set aside. The detenue, is ordered to be set at liberty forthwith if the detenue is not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.
[S.R.BRAHMBHATT, J.] ..mitesh..