IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3126 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 ?
========================================= KAMLESH AMBALAL PATEL THROUGH HIS WIFE URMILABEN K PATEL Petitioner(s) Versus STATE OF GUJARAT & 2 Respondent(s) ========================================= Appearance :
MR BM MANGUKIYA for Petitioner(s) : 1,MS BELA A PRAJAPATI for Petitioner(s) : 1, MS MAITHILI MEHTA, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 3.
========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 12/06/2012 CAV JUDGMENT
[1] RULE. Learned Assistant Government Pleader Ms. Maithili Mehta, waives service of notice of Rule for the respondent – State.
[2] This petition is directed against the order of detention dated 08.02.2012 passed by respondent No.2, in exercise of powers conferred under Section 3(1)/3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short “the Act”) by detaining the detenue as a “property grabber” as defined under Section 2(b) of the Act.
[3] Learned Advocate for the detenue submits that registration of the FIR's itself cannot lead to disturbance of even tempo of public life and therefore the public order. He further submits that, except the FIR's registered under the Indian Penal Code, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenue is a 'property grabber' within the Act and required to be detained as the detenue's activities are prejudicial to the maintenance of public health and public order.
[4] Learned Assistant Government Pleader submitted that registration of the FIR's would go to show that the detenue 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.
[5] Having heard the rival submissions of the parties and perused the record of the case, I am of the view that the FIR's registered 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.
[6] In addition, the petitioner who is facing five criminal cases for the offence punishbale under sections 406, 467, 468, 471, 120B of Indian Penal Code has been granted bail by this Court vide order dated 21.04.2012 passed in Criminal Miscellaneous Application No.4861 of 2011, vide order dated 21.04.2012 passed in Criminal Miscellaneous Application No.4862 of 2011, vide order dated 26.04.2012 passed in Criminal Miscellaneous Application No.4996 of 2011, vide order dated 03.02.2012 passed in Criminal Miscellaneous Application No.826 of 2012. Without considering this aspect, the impugned order of detention has been passed.
[7] I am of the view that the activities of the detenue 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.
[8] In the result, the petition is allowed. The order of detention dated 08.02.2012 is quashed and set aside. The detenue, is ordered to be set at liberty forthwith, if not required in connection with any other case. Rule is made absolute, accordingly. Direct Service is permitted.
[M.D. Shah, J.] satish