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SCA/14879/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14879 of 2010
For
Approval and Signature: HONOURABLE
MR.JUSTICE AKIL KURESHI =========================================================
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 ?
=========================================================
AJIT
@ KANO KESHUBHAI SAGAR - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH DEPUTY SECRETARY & 2 - Respondent(s)
========================================================= Appearance :
MR
HR PRAJAPATI for Petitioner(s) : 1, MR LB DABHI AGP for Respondent(s) : 1, 3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/02/2011
ORAL
JUDGMENT
Petitioner
is ordered to be kept on preventive detention by an order dated 2.10.2010 passed by the Police Commissioner, Rajkot, in exercise of powers under Section 3(1) of Prevention of Antisocial Activities Act (for short 'PASA').
Grounds
of detention would indicate that against the petitioner, there is an isolated case of offence under Section 66B, etc. for offences punishable under Bombay Prohibition Act registered on 30.9.2010. It is further recorded that to prevent the petitioner from committing similar antisocial activities, it is necessary to place him under preventive detention.
Counsel
for the petitioner, however, submitted that only for involvement in one case of prohibition, the petitioner cannot be said to be antisocial element. His detention is, therefore, illegal. Reliance was placed in the case of Ashokbhai Jivraj @ Jivabhai Solanki V/s. Police Commissioner,, Surat & Ors. reported in 2001(1) GLH 393; wherein Division Bench of the High Court made following observations.
"So
far as the cases against the detenu are concerned, they have already been registered. They were against persons mentioned therein which is stated in the grounds of detention by the detaining authority. Regarding two statements, having taken into account the law laid down by the Supreme Court in Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740 and reiterated from time to time including the decisions referred to by us hereinabove, the case falls under the maintenance of "law and order" and not "public order". The subjective satisfaction arrived at by the detaining authority, therefore, cannot be said to be legal, valid and in accordance with law. Since in the facts and circumstances, an order of detention could have been passed by the detaining authority for maintenance of "public order", the order deserves to be quashed and is hereby set aside. The detenu is ordered to be set at liberty forthwith unless required in any other case. Appeal is accordingly allowed. No order as to costs".
Counsel
also relied on unreported decision of learned single Judge dated 25.10.2005 passed in Special Civil Application No.18901 of 2005; wherein, it was held and observed as under:
"6.
In the present case the reliance is only placed upon the solitary offence, without having any basis and dehors the relevant and credible materials to arrive at a conclusion about disturbance of public order by the prejudicial activities of the detenue and therefore, powers exercised by the authority while passing the order of detention is the result of non-application and the order of detention requires to be quashed and set aside.
7.
For the reasons recorded hereinabove, the order of detention dated 22.06.2005 passed by the respondent no.2, is hereby quashed and set aside. The detenue Jyotiben Wd/o. Rameshbhai Morarbhai Koli Patel is ordered to be set at liberty forthwith if she is not required further in any other case by any other authority".
Learned
AGP opposed the petition contending that order of detention was based on subjective satisfaction of the authority.
From
the record, I find that admittedly, the petitioner was involved in only one case of selling illicit liquor. Except for recording of said FIR, no other cases are registered against the petitioner. He is not found to be involved in any other criminal activities so far. Judgments referred above would therefore cover his case.
In
view of the above, I am of the opinion that order of detention is bad in law. Petitioner is ordered to be released forthwith if not required in any other criminal case. Petition is allowed. Rule made absolute accordingly.
(AKIL
KURESHI, J.)
(ashish)
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