Allowed

Mustufakhan Nawazkhan Pathan v. State of Gujarat Thro Secretary

Gujarat HC5 Jul 2012SCA/3955/2012

Case brief

AI extract

What is this about?

Petitioner challenged an order of detention passed under the Gujarat PASA Act as a cruel person. The Court held that since the detainee's activities did not affect public order, the subjective satisfaction of the detaining authority was vitiated.

What did the court decide?

The order of detention dated 06.01.2012 is quashed and set aside. The detenue is to be set at liberty forthwith.

Mustufakhan Nawazkhan Pathan Vs State… — Constitutional and Fundamental Rights | Gujarat HC (2012)

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SCA/3955/2012

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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. 3955 of 2012

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For Approval and Signature:

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HONOURABLE MR.JUSTICE ANANT S. DAVE

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MUSTUFAKHAN NAWAZKHAN PATHAN - Petitioner(s) Versus

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STATE OF GUJARAT THRO SECRETARY & 2 - Respondent(s)

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Appearance :

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MR MT SAIYADfor Petitioner(s) : 1,

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

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CORAM :HONOURABLE MR.JUSTICE ANANT S. DAVE

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Date : 05/07/2012

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ORAL JUDGMENT

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1. This petition is directed against the order of detention dated 06.01.2012 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 detenue as a “cruel person” as defined under Section 2(bbb) of the Act.

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1. Learned advocate for the detenue submits that the registered case/s under the Prevention of Cruelty to Animals Act, 1960, would not indicate anything to support disturbance to public order nor have the activities of the detenue affected adversely the maintenance of public order and, therefore, the order of detention passed by

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SCA/3955/2012

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JUDGMENT

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the detaining authority cannot be sustained in law and is required to be quashed and set aside.

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1. Mr. Mihir Bhatt, learned AGP has opposed the petition and supported the order of detention in letter and spirit.

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Having heard the learned counsel for the parties, on perusal of record, considering the definition of 'cruel person' “means a person who either by himself or as member or leader of a gang habitually commits or attempts to commit, abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 ” contained in Section 2(bbb) of the PASA Act and the law laid down by the Apex Court in the case of Gopalanachari vs. State of Kerala , reported in AIR 1981 SC 674, where the Apex Court considered and reiterated the law on personal liberty visa-vis rule of law and procedure contemplated in Article 21 of the Constitution of India which means fair and not formal procedure and Article 22 which specifically spells out the procedural safeguards for preventive and punitive detentions and a law providing for such detention should conform to Article 22 of the Constitution of India, while referring to the decisions of the Apex Court in the case of Maneka Gandhi reported in [1978] 1 SCC 248 and in the case of Hoskot reported in (1978) 3 SCC 544, and as held by the learned Single Judge of this Court vide Oral Judgment dated 21.2.2005, in Special Civil Application No.15105 of 2004 [Iliyas Mohammad hi vs. Commissioner of Police], and keeping in mind the object of detention law being prevention and not punishment, this Court is of the opinion that the activities of the detenue cannot be said to be adversely affecting the maintenance of public

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SCA/3955/2012

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JUDGMENT

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order and at the most fall under the maintenance of “law and order”. Hence, the subjective satisfaction arrived at by the detaining authority is vitiated.

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1. In the result, the petition is allowed. The order of detention dated 25.01.2012 passed by the respondent No.2 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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*pvv

Mustufakhan Nawazkhan Pathan v. State of Gujarat Thro Secretary

Case brief

What is this about?

What did the court decide?

Mustufakhan Nawazkhan Pathan v. State of Gujarat Thro Secretary

Case brief

What is this about?

What did the court decide?

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