IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 585 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE MD SHAH ========================================= 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 ?
Whether this case involves a substantial question of law as to the
4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= MUKESHBHAI @ MUKHI SHYAMJIBHAISURANI Petitioner(s) Versus STATE OF GUJARAT & 1 Respondent(s) ========================================= Appearance :
MR BS PATEL for Petitioner(s) : 1, MS MAITHILI MEHTA, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 2.
========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 12/06/2012 CAV JUDGMENT
[1] By this petition, the petitioner has prayed to quash and set aside the order dated 01.11.2011 passed by respondent no.2 and confirmed by respondent no.1 – State Government vide order dated 05.11.2011 and also notification / order dated 07.12.2011 passed by respondent no.2.
[2] In the petition, it is stated by the petitioner that the petitioner is not having the copy of the order dated 01.11.2011 and order dated 05.11.2011 passed by the respondents as the petitioner is not arrested.
[3] The petitioner is sought to be detained under the provisions 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.
[4] It is alleged that when police squad started searching, petitioner tried to run away from the spot and he was caught red handed by the police. During investigation, Car and mudamal liquour was found from the petitioner and another persons.
[5] It is submitted by learned advocate for the petitioner that the petitioner cannot be branded as bootlegger and the order of detention is without any basis. Only one case is registered against the petitioner and the petitioner has been wrongly implicated. The petitioner is never connected with bootlegger activities. 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.
[6] 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.
[7] It is admitted fact that car was not belonging to present petitioner and it is stated by the petitioner before the Investigating Officer that keys of car is with one Jitu. Jitu was detained by the authority under the PASA Act. Bail was granted in favour of the petitioner by the Sessions Court. This Court has also gone through the affidavit filed by Commissioner of Police, Vadodara City. No other offence is registered against the petitioner in past.
[8] Interim relief is granted by this Court in favour of the petitioner which is continued till today. 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.
[9] In the result, this Special Civil Application is allowed. The order dated 01.11.2011 passed by respondent no.2 and confirmed by respondent no.1 – State Government vide order dated 05.11.2011 and also notification / order dated 07.12.2011 passed by respondent no.2 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.
[M.D.Shah, J.] satish