[1] This petition is directed against the order of detention dated 24.12.2011 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 “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 three criminal cases pending against the petitioner. The cases are registered under the provisions of the Indian Penal Code. It is alleged that the petitioner is dealing in property grabbing.
[2] It is submitted by learned advocate for the petitioner that single offence is registered against the petitioner. It is alleged that present applicant had only signed the sale deed as witness and identified the parties at the time of execution of sale deed. It is also submitted that impugned order is passed after delay of 6 months. 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. It is submitted that However, learned counsel for the detenu submits that, except FIRs 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. It is also submitted that other accused who sold the property and who purchased the property were granted bail by the Sessions Court as well as this Court. No order of detention is passed against them. Sale deed is also cancelled. It is also submitted that co accused has been released by this Court vide order dated 23.04.2012 in Special Civil Application No.3083 of 2012. Therefore, it is requested to allow the petition.
[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 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] In the result, this Special Civil Application is allowed. The order of detention dated 24.12.2011 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.
satish [M.D.Shah, J.]