Allowed

Lalmahmad @ Bhuro Safi Mahmad Nilgar v. Commissioner of Police

Gujarat HC9 Jul 2012SCA/3489/2012

Case brief

AI extract

What is this about?

A special civil application challenging a preventive detention order passed under the Gujarat Prevention of Anti Social Activities Act. The High Court held that FIRs registered under the Bombay Prohibition Act alone are insufficient material to establish that the detenue's activities are prejudicial to public order or health. Consequently, the order was unsustainable.

What did the court decide?

The order of detention dated 05.03.2012 is quashed and set aside; the detenue is set at liberty forthwith.

Lalmahmad @ Bhuro Safi Mahmad Nilgar… — Constitutional and Fundamental Rights | Gujarat HC (2012)

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SCA/3489/2012

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 3489 of 2012

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For Approval and Signature:

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HONOURABLE MR.JUSTICE ANANT S. DAVE

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LALMAHMAD @ BHURO SAFI MAHMAD NILGAR - Petitioner(s) Versus COMMISSIONER OF POLICE & 2 - Respondent(s)

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Appearance :

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MR HEMANT B RAVALfor Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 2.
MR MIHIR BHATT AGP for Respondent(s) : 2 - 3.

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CORAM :HONOURABLE MR.JUSTICE ANANT S. DAVE

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Date : 09/07/2012

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ORAL JUDGMENT

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1. This petition is directed against the order of detention dated 05.03.2012 passed by respondent No.1, 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 “bootlegger” as defined under Section 2(b) of the Act.

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1. Learned advocate for the detenue submits that registration of FIR/s itself cannot lead to disturbance of even tempo of public life and therefore the public order. He further submits that, except FIR/s 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

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SCA/3489/2012

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JUDGMENT

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Section 2(b) of the Act and required to be detained as the detenue's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenue 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.K. 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 detenue.

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1. Mr. Mihir Bhatt, learned Assistant Government Pleader submitted that registration of 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.

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1. Having heard the rival submissions of the parties and perused the record of the case, I am of the view that FIR/s 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.K. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in

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SCA/3489/2012

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JUDGMENT

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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 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.

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1. In the result, the petition is allowed. The order of detention dated 05.03.2012 passed by the respondent No. 1 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.

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[ANANT S. DAVE, J.]

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PIYUSH

Lalmahmad @ Bhuro Safi Mahmad Nilgar v. Commissioner of Police

Case brief

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Lalmahmad @ Bhuro Safi Mahmad Nilgar v. Commissioner of Police

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